ftr$apfnron

### was ftted

### for~ . e::.·

# •e~ · . pen er**~eme** Court Clerk IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) ) ) ) Respondent, No. 89965-7


### v. ) ENBANC MICHAEL SHANE CATES, ) ) ) ) Petitioner. Filed: 

## JU L 02 2015



# ________________) YU, J.-One ofthe community custody conditions imposed as part of Michael Shane Cates' sentence provides that upon release from total confinement, he must consentto home visits to monitor his compliance with other community custody provisions. Cates argues this condition violates article I, section 7 ofthe Washington Constitution. We affirm the Court ofAppeals' holding that his challenge is not yet ripe for review. FACTUAL AND PROCEDURAL HISTORY Following ajurytrial, Cates was convicted oftwo counts offirst degree rape ofa child and two counts offirst degree child molestation. He was given a standard-range sentence for each conviction, all to run concurrently, resulting in 25State v. Cates, No. 89965-7
years oftotal confinement. He was further sentenced to 3 years ofcommunity custody upon his release andprohibited from contactingthe victim. The prosecutorproposed a community custody conditionthat 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 "thatthe 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 ofthe prosecutor's recommended condition, the trial court entered a modified conditionproviding, "Youmust consent to [Department ofCorrections] home visits to monitor your compliance with supervision. Home visits include access for the purposes ofvisual inspection ofall areas ofthe residence in which you live or have exclusive/joint control/access, to also include computers which youhave
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 computerused by him, and ifhe has found

-- ifthere is any evidence thathe is using it for improperpurposes contacting children or accessing sexually explicit information or materials thathe's already prohibited from, then he will be prohibited from using it. I will indicate that he canuse a computer so long as it is subjectto a search on request byhis 

## ceo, and ifthere is evidence that he's committing any violation by use of the computer, he will lose this right.

2State v. Cates, No. 89965-7 5 VRP at 615. This language was not incorporated into the writtenjudgment and sentence, either explicitly orby reference. The Court ofAppeals 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 ofthe 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 ofthis court clarified the analysis for determining whether apreenforcement 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). Itis ripe '""ifthe issues raised are primarily legal, do notrequire 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) (quotingFirst UnitedMethodist Church of Seattle v. Hr 'gExam 'r, 129 Wn.2d 238, 255-56, 916 P.2d 374 (1996))). Furthermore, "we must consider the hardship to the petitioner[] ifwerefused to review [the] challenge on direct appeal." !d. at 789. Itis undisputedthatthe community custody condition is a final action and Cates' challenge raises primarily legal issues. We thus consider

3State v. Cates, No. 89965-7 only whether further factual development is required andthe risk ofhardship to Cates ifwe decline to address the merits ofhis challenge at this time. Cates contends that no further factual development is required because he is bringing a facial constitutional challenge: "Didthe Court ofAppeals err in affirming a community custody conditionthat requires Mr. Cates to 'consent' to searches by his CCO, merely uponthe CCO's request, without specifying that the search must be based onreasonable cause?" Pet. for Review at 1. Cates' challenge has no basis in the language ofthe 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 vaguenesschallenge to "the condition as written"). Some future misapplication of the community custody condition mightviolate article I, section 7, butthat "depends onthe particular circumstances ofthe attempted enforcement." Sanchez Valencia, 169 Wn.2d at 789. Further factual development is therefore needed-the

1 A CCO "mayrequire an offender to submitto a search" but only "[i]fthere is reasonable cause to believe that an offenderhas violated a condition orrequirement ofthe sentence." RCW 9.94A.631(1). That is a statutory provision distinct from the community custody conditionhere. 4State 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 UnitedStates v. Loy, 237 F.3d 251, 253 (3d Cir. 2001), the risk ofhardship here is insufficient tojustify review ofCates' challenge before it is factually developed. In those cases, the conditions at issue prohibitedpossession ofcrime-related items and "immediately restrict[ed] the petitioners' conductupon their release from prison." Sanchez Valencia, 169 Wn.2d at 791. Compliance with those conditions required the petitioners to immediately dispose ofsuch items upontheirrelease and to refrain from obtaining new ones. Compliance here does notrequire Cates to do, or refrain from doing, anything upon his release until the State requests and conducts a home visit. Cates will not "suffer significantrisk ofhardship" ifwe 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 inSanchez Valencia, we affirm the Court of Appeals' holding that Cates' preenforcement challenge is not yetripe. Further

2 Massey incorrectly stated that a defendant challenging a community custody condition must suffer actual harmbefore his or her claim is ripe. Jafar v. Webb, 177 Wn.2d 520, 525, 303 P.3d 1042 (2013). Nevertheless, Massey "properly determined" thatthe defendant's challenge (which was similarto the one Cates raises here) was not ripe. Sanchez Valencia, 169 Wn.2d at 790. 5State 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 ofdeveloped facts.

6State v. Cates, No. 89965-7



### WE CONCUR:

7State v. Cates, No. 89965-7 Fairhurst, J. (dissenting)

No. 89965-7 FAIRHURST, J. (dissenting)-! dissentbecause Michael Shane Cates' facial challenge to his community custody provision is ripe for review and because the computer inspection component ofthe community custody condition authorizing unrestricted access to Cates' personal computer by his community corrections officer (CCO) violates article I, section 7 oftheWashington Constitution. 1 Following his convictions for two counts offirst degree rape and two counts offirst degree child molestation, the court imposed a community custody condition thatrequires, "Youmust consentto DOC [(Department ofCorrections)] home visits to monitor your compliance with supervision. Home visits include access for the purposes ofvisual inspection ofall areas ofthe residence in whichyou live or have exclusive/jointcontrol/access, to also include computers whichyouhave access to." Clerk's Papers (CP) at 18. The court explainedthat [Cates] willhaveto allowhis CCOto have accessto any computerused byhim, and
... ifthere is any evidence that he is using it for improper purposes contacting children or accessing sexually explicitinformation ormaterialsthathe'salreadyprohibitedfrom, thenhe willbeprohibited from using it. I will indicate thathe canuse a computer so long as it is subjectto a search onrequestbyhis CCO, and ifthere is evidence that
1I would hold that the community custody condition permitting Cates' CCO to conduct home visits and visual inspection ofCates' residence does not constitute prohibited governmental intrusion into his private affairs under article I, section 7. 

### 1State v. Cates, No. 89965-7 Fairhurst, J. (dissenting)


### he's committing any violation by use ofthe computer, he will lose this right. 5Verbatim Record ofProceedings (Apr. 24, 2012) (VRP) at 615. On appeal, Cates arguedthatthe communitycustody conditionviolated 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 underthe FirstAmendmentbecause it chilledhis rightto use a computerto 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 ofAppeals declined to address Cates' challenge to the community custody condition because it found that Cates' challenge was not ripe for review

2FormerRCW 9.94A.195 (1984) was recodified as RCW9.94A.631 in 2001 andprovided, in relevant part, that "[i]f there is reasonable cause to believe that an offender has violated a condition or requirement ofthe sentence, an offender may be required to submit to a search and seizure ofthe offender's person, residence, automobile, or otherpersonal property." 3Iusethephrase "computerinspectioncomponent"to referto 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 ofany term ofcommunity custody, the court may order an offender to ... (f) [c]omply with any crime-relatedprohibitions." 

### 2State 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, assertingthe community custody condition is unconstitutionally vague on its face. 5 The majority'sholding, affirmingthe CourtofAppeals, thatthe conditionwill 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 ripefor review To determine whether a preenforcement challenge to a community custody conditionis ripe for review, we must find that '"theissues raised are primarilylegal, do notrequire further factual development, andthe challenged actionis 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 ofthe 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 ofthe condition ofcommunity custody that requires him to 'consent' to random, suspicionless searches or face arrest andjail." Suppl. Br. of Pet'r at 16. Cates is not challenging the constitutionality or legality ofa particular search. !d. 6 Sanchez Valencia provides the appropriatetestfor determining whether apreenforcement challenge to a community custody provision is ripe for review. 3State 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 thattheir challenge did notrequire further factual developmentbecausethe question presented was "not fact dependent; either the condition as written provides constitutional notice andprotection against arbitrary enforcementor itdoes not." 

### Id. at 789. The Court ofAppeals, relying onState v. Massey, 81 Wn. App. 198,200, 913 P.2d 424 (1996), stated that "[t]he unconstitutionality of a community custody condition is notripe for reviewunless 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 insteadthat "[c]urrenthardship is not a strict requirement for ripeness." 

### I d. at 525 (emphasis added). The Massey court appears to have conflated thejusticiabilityrequirements of ripeness and standing. "Inessence the question ofstanding is whetherthe litigantis entitled to have the court decide the merits ofthe dispute or ofparticular 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, ormootdisagreement[s]," or entertaining disputes that are 

### 4State v. Cates, No. 89965-7 Fairhurst, J. (dissenting) merely "potential, theoretical, abstract or academic," by ensurmg that the controversyhas sufficientlydevelopedto become suitable forjudicialdetermination; "otherwisethe courtsteps into theprohibited area ofadvisory opinions." Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973). We have repeatedly heldthat "[a] litigant does nothave standingto 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 (1976) ("One who is not adversely affected by a provision ofa 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 cannoturge the invalidity ofa 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 unequivocallythat "acriminal defendant always has standing to challenge his orher sentence on grounds ofillegality." Bah!, 164 Wn.2d at 750 (emphasis added).



### 5State v. Cates, No. 89965-7 Fairhurst, J. (dissenting)
I find that the Court ofAppeals 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 orher claim is ripe. Majority at 5n.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 rejectthe language andtestused inMassey andto proceedundertheproperSanchez Valencia ripeness test. Cates ' challenge does notrequirefurtherfactual 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 majorityholdsthatCates' claims will notripenuntil the Statetakes additional action because reasonable cause is a legal conclusion that depends on the specific factual circumstances ofa search and because Cates has notyetbeen subjectto 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


### 6State v. Cates, No. 89965-7 Fairhurst, J. (dissenting) inspection ofhis computer. Cates asserts that the community custody condition is unconstitutionallyvague. Incontrastto themajority's assertionthatCates' challenge rests on some future misapplication ofthe condition, whether the condition is valid
or violates the constitution is purely a question oflaw. The State need not conduct
an allegedly illegal search for us to determine whether the community custody condition itselfviolates the constitutional provisions on which Cates relies. Such factual development would be irrelevantto 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 communitycustodyconditionripe forreview. 164 Wn.2dat747-52. There,the State argued that the conditions imposed no immediate hardship on Bahl because Bahl
was still inprison andthe conditions didnotyetapplyto him. 

### !d. at751. We rejected that argument. We noted that the conditions would immediately restrict Bahl upon his release and thatnothing could changebefore Bahl'sreleasethat would affect our analysis ofthe legal question presented. 

### Id. at 751-52. InBahl, we cited with approval the Third Circuit'sreasoning in UnitedStates


### v. Loy, 237 F.3d 251,257 (3d Cir. 2001), that "the fact that aparty may be forced to alter his behavior so as to avoid penalties under apotentially illegal regulation is, in itself, a hardship." The Loy court reasoned that a criminal defendant need not


### 7State v. Cates, No. 89965-7 Fairhurst, J. (dissenting) 

### "'expose himselfto actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise ofhis 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 immediatelyremove certainitems from theirresidence. SeeBah!, 

### 164 Wn.2d at 743; Sanchez Valencia, 

### 169 Wn.2d at 785; Loy, 

### 237 F.3d at 253, 255. The conditionhere 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 ofhis 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 behaviorto avoid

7The Court ofAppeals has noted that the personal computer is a '"modern day repository ofa 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. 8State v. Cates, No. 89965-7 Fair hurst, J. (dissenting) violating that condition itselfindicates a hardship. Evenifthe hardship imposedby Cates' condition is not as significant as those in Bahl, Sanchez Valencia, and Loy, this does not meanthat we must decline review ofthe community custody computer condition. The hardship imposed by withholding consideration must be considered. See Sanchez Valencia, 169 Wn.2d at 786. Themajority asserts that Cates' challengehas "nobasis inthe language ofthe 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."' Id. (alteration in original) (quoting CP at 18). However, as written,theterms ofthe condition allowfor a searchwithoutreasonable
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 andprivate informationthat canbe storedona computer andthe ambiguity regarding what constitutes "access" for visual inspection of a computer, the condition may allowunconstitutional searches. Because I find Cates' challenge ripe for review, I wouldproceed to the merits ofCates' claim.

9State 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. ChaconArreola, 

### 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
atwo-part analysis. First, we askwhetherthe governmenthas disturbedone'sprivate 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 10State v. Cates, No. 89965-7 Fairhurst, J. (dissenting) privacy expectations ofthe individual in question because such expectations do not illuminate those privacy interests that the citizens ofthis state have held or should be entitled to hold. 

### !d. Instead, we examine the historical treatment ofthe 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 Courtoral argument, State v. Cates, No. 89965-7 (Sept. 30, 2014), at 19:50to 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 onthe monitor, and observe any notes that may be near or attached to the computer. 

### Id. The State did not argue that the componentpermitted 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 ofthe computer inspection component by saying that it gave Cates' CCO "access to any computerused by [Cates], and
...that [Cates] canuse a computer so long as it is subject to a search on request by his CCO." 5 VRP at 615 (emphasis added). The court explainedthatthe searchwas meantto allowthe CCO to look for
11State 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'scomments clearlyindicatethatitintendedthe computerinspection component to permit Cates' CCO to search Cates' computer. I am not persuaded that a search ofa 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 INTERNATIONALDICTIONARY 11 (2002). One does not make use ofa computer by simply eyeing the physical frame. One most naturally makes use ofa computerby examining its digital contents. I also find the State's characterization unavailing because we would render the computer inspection component superfluous ifwe 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 ofCates' 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 heldthat a citizen's bankrecords fall under the private affairs umbrella due, in part,
12State v. Cates, No. 89965-7 Fairhurst, J. (dissenting)


### to the type ofinformation 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 "'awealth ofdetail 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 ofcommunication that have historically been strongly protected underWashingtonlaw."

### !d. (alterationin original) (citationomitted) (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 inMiles andHinton. Not only does a computer containthe same type of information that abankrecord may reveal, but in our increasingly paperless world a computer likely contains an individual's actual bankrecords. A 

### computer may also contain a person's e-mail correspondence, which implicate the same intimate
13State v. Cates, No. 89965-7 Fairhurst, J. (dissenting) subjects encompassedbyone'stextmessages-andprobablymore. Itis nota 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 courtrecord at 200), the contents ofa computer expose "a 'wealth of detail about [a person's] familial, political, professional, religious, and sexual associations,"'

### Hinton, 179 Wn.2d at 869 (alterationin original) (quoting

### Jones, 132 S. Ct. at 955). The computer inspection component in Cates' community custody condition protects none ofthis information. On its face, the computer inspection component does not limitthe scope ofthe inspection. Instead, itpurports to authorize unfettered
access to all ofthe contents on Cates' computer. While some ofthe information on Cates' computer may be relevant to his compliance with his community custody conditions, much ofit is not. The computer inspection component does nothing to protectthis unrelated information. I realize that one's home, in general, may enjoy greater privacy protection thaneven one'spersonalproperty andthatanoffenderon communitycustodyenjoys 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 avisual inspection ofhis
14State v. Cates, No. 89965-7 Fairhurst, J. (dissenting)
home because the condition appropriately limits the scope ofthat inspection only to the extent necessary to monitor his compliance with the terms ofhis 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 oflaw 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 ofSeattle 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 warrantrequirement. 

### State 

### v. Ladson, 138 Wn.2d 343,352n.3, 979P.2d 833 (1999). Inthe absence ofa warrant, the State must show that the intrusion "falls within one ofthejealouslyguarded and carefully drawn exceptionsto the warrantrequirement." 

### 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
15State 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 ofthe 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 ofsuch 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' computerwithoutthe reasonable cause requiredby 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 ofCates' computer

8As noted, I agree the horne visits do notviolate article I, section 7 because they qualify as an appropriate monitoring condition, which means that a CCO does not need any degree ofcause to carry them out. 

### 16State v. Cates, No. 89965-7 Fairhurst, J. (dissenting)
without any requisite suspicion that Cates has violated the terms ofhis community custody. I find support for my reading ofthe condition in the statement from the trial courtthatthe componentpermits Catesto use a computer "solong as itis 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 ofcause being necessary for that search. Thetrial court may not authorize an otherwise baseless search ofan offender's private affairs. While the computer community custody conditionpurports 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 consentto a search when (1) thatperson gives such consentvoluntarily, (2) thatpersonhas authority to grant such consent, and (3) the search does not exceed the scope ofthe consent. 

### ld. Werequire consentto bebothmeaningful andinformed. Statev. Schultz, 170Wn.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 consentto the searchofhis computerorface thepossibility ofhavinghis community custody revoked and being returned to prison. And this consent was imposed on

17State v. Cates, No. 89965-7 Fairhurst, J. (dissenting)
Cates by the trial court as a condition ofhis community custody-such consent is notvoluntary. Because the computer inspection component in Cates' community custody conditionpurports to allow an intrusion into Cates' private affairs without authority oflaw, I would hold that the computer inspection component facially violates the protections in article I, section 7. I would invalidate the computer inspection component onthatbasis. 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 ofthe condition to challenge its constitutional validity. The State concedes thatthe issues are primarily legal and that the challenged action is final. Cates' challenge satisfies the third requirement ofripeness because it does not require further factual development. Ripeness does not require a current hardship, and nothing will change priorto Cates' release that will alter the analysis ofwhether the community custody condition, on its face, allows unconstitutional searches. Therefore, Iwouldreversethe CourtofAppeals, reachthe merits ofCates' challenge, and hold that the computer inspection component of the community custody condition is unconstitutional.

18State v. Cates, No. 89965-7 Fairhurst, J. (dissenting)

19