IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. LISA LIPPINCOTT, Appellant. No. 71522-4-1 DIVISION ONE

UNPUBLISHED OPINION FILED: June 29, 2015 

### Becker, J. — When this case went to the jury, an unnecessary element

was included inthe to-convict instructions. Because the State failed to prove the 

### unnecessary element, appellant's eightconvictions for second degree identity theft must be reversed. A conviction forpossession of stolen property must also be reversed because itwas 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. Thewarrantwas issued because Lippincottfailed toreportto her 

### community custody officer as required by conditions imposed upon herbythe Department of Corrections. 

### The officers located Lippincott at a gas station in south Seattle. 

### DepartmentofCorrections Officer Kristoffer Rongen arrested Lippincottand immediately began to search her purse. Hefound keys andfive gift andprepaidNo. 71522-4-1/2 

### 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 Lippincottwas unemployed. Seeing the gift and prepaid credit cards caused Rongen to suspectthat Lippincottwas failing to reportfor supervision because she had become involved in identity theft once again. 

### Rongen asked Lippincottwhere she lived. Lippincottsaid 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 informantthat Lippincott lived at a 

### particular apartment inFederal Way. Rongen suspected that Lippincottwas lying about her residence in orderto prevent the officers from searching the Federal 

### Way apartment. Rongen suspected that the Federal Way apartmentwas 

### Lippincott's true residence and that itwas likely to contain evidence of new identity theft offenses. 

### The officers took Lippincott with them to the Federal Way apartmentto 

### search it. Lippincott admitted that she lived there. Inside, the officers found bags full of identitydocuments includingchecks, bank statements, social security cards, credit cards, passports, birth certificates, and other personal documents. 

### They also found thousands ofpages 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 ofsecond degree identity theft and 1 count ofpossessing stolen property inthe third degree. All charges stemmed from items found within Lippincott's apartment. Eight ofthe 10 countsNo. 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 ofdrivers' licenses. The charge of possession of stolen property related to paycheck stubs that were not Lippincott's. Lippincott moved to suppress the fruits ofthe 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 exceptfor one ofthe 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 offact could find all elements ofa crime were proved beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The crime ofidentity theft is setforth in RCW 9.35.020. The portion ofthat statute relevant to this appeal states: (1) No person may knowingly obtain, possess, use, or transfer a 

### means of identification or financial information ofanother person, 

### living or dead, withthe intent to commit, or to aid or abet, any crime. (2) Violation of this section when the accused or an accomplice violates subsection (1) ofthis section and obtains 

### credit, money, goods, services, or anything else ofvalue in excess of one thousand five hundred dollars in value shall constitute 

### identity theft inthe first degree. Identity theft inthe first degree is a class B felony punishable according to chapter 9A.20 RCW. 

### (3) Aperson is guilty of identity theft inthe second degree when he or she violates subsection (1) of this section under 

### circumstances not amounting to identity theft inthe first degree. Identity theft inthe second degree is a class C felony punishable according to chapter 9A.20 RCW.

account];No. 71522-4-1/5 

### (2) Thatthe defendant acted withthe intent to commit or to aid or abet any crime; 

### (3) Thatthe defendantobtained credit ormoney orgoods or 

### services or anythingelse thatis $1500 orless in value from the acts describedinelement (1); or did not obtain any credit ormoney 

### orgoods orservices or other items ofvalue; and 

### (4) That any ofthese acts occurred in the State of Washington. 

### Ifyou find from the evidence that each ofthese elements has been proved beyond a reasonable doubt, then itwill be your duty to return a verdict of guiltyas to Count 1. On the other hand, if, after weighing all of the evidence, you 

### have a reasonable doubt as to any one ofthese elements, then it will be your duty to return a verdict of not guiltyas 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 twoelements. 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 ofthe 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 bypossessing 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 inthe 

### 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 ofthe Washington Constitution. We do not agree with Lippincott's reading ofthe case law. Several cases have considered article I, section 7 and have nevertheless held that it is not offended by permitting warrantless searches ofpersons who are subjectto conditions ofprobation ifthe 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 whetherthe 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. Ifthere is reasonable cause to believe that an offender has violated a condition or requirement ofthe sentence, a community corrections officer may require an offenderto submitto a search and seizure ofthe offender's person, residence, automobile, or other personal property.No. 71522-4-1/7


### RCW 9.94A.631(1). Awarrantless search of a probationer is reasonable ifa police or probation officer "has a wellfounded suspicion that a probation violation has occurred." Patterson, 51 Wn. App. at 205; accord Lucas, 56 Wn. App. at
244. 

### Atthe 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 ifsomebody's on warrant status or 

### we believe there's information that they have violated theirterms of 

### supervision, we have the right to search their person, place or vehicle or residence, and that's what Iwas doing at the time she was taken into custody. 

### Such testimony by itself is notenough 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 paroleviolationjustifies any search for any otherviolation." State v. Jardinez, 184Wn. App. 518, 525, 338 P.3d 292 (2014). Jardinez makes the point that warrantless searches ofprobationers are not unlimited in scope. Jardinez, 184 Wn. App. at 523-30. 

### Rongen also articulated a suspicion that Lippincott's failure to report meantthat she was likely reoffending. The trial court found that Rongen had a 

### reasonable suspicion that Lippincottwas again engaged in identity theftbased on the presence of the gift cards and creditcards found in her purse. The court did 

### notseparately find ajustification for the search of the purse. The courtstated its reasoning inwritten findings and conclusions: The Courtfinds that Officer Rongen's search ofthe 

### defendant's purse wasjustified, OfficerRongen had reasonableNo. 71522-4-1/8 suspicion that the defendant was infurther violation ofher conditions ofsupervision and that evidence offurther 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 ofthe search ofthe defendant's purse, Officer Rongen located prepaid credit cards and giftcards, as well as a key (which was laterfound to be the key to the front door ofthe listed residence). Based on the totality ofthe facts known to Officer Rongen at the time (including his knowledge ofthe 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 thatthe defendant was in violation of her terms of probation and that further evidence offraudulent 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 ofthe purse. The officers stopped Lippincott because she was wanted for 

### failure to report and there was a warrantfor her arrest. No one claims that evidence ofthe violation of failure to report was likely to be found in Lippincott's 

### purse. Her purse was searched based on a beliefthat it might contain evidence 

### of identity theft. The officer's reasoning—that a probationerwho fails to report is likely involved inthe same type of criminalbehavior as inthe past and is trying to avoid detection—is too attenuated to be considered a well-founded or reasonable 

### suspicion. Possibly, the search ofthe purse could have beenjustified on the basis ofa search incident to arrest, but as the State concedes, the record was

8No. 71522-4-1/9

not developed on that theory and itdoes not establish where Lippincott's purse

was located at the time of arrest. The warrantless search ofthe purse produced the gift cards and prepaid credit cards, items pivotal to the trial court's decision to uphold the warrantless search ofthe apartment. Allitems ofevidentiary value found in Lippincott's purse and apartment should have been suppressed as fruit ofthe poisonous tree. Without that evidence, all ofthe convictions are unsupported.
Reversed. 

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WE CONCUR: 

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