IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 78656-3

Respondent, v. DIVISION ONE PHUONG VIEN MAI, UNPUBLISHED OPINION

Appellant. FILED: January21 2020
PER CURIAM

— Phuong Mai appeals his conviction for first degree unlawful possession of a firearm. He challenges the trial court’s denial of his motion to suppress a firearm recovered by community corrections officers during
a warrantless search of his residence. Mai contends the search was unlawful, arguing thatthe nexus between his community custodyviolation and the property searched was insufficientand the information precipitating the search was stale. Because the evidence supported a reasonable belief that the search location had a nexus to the community custody violation, and because the evidence was not stale, we affirm. BACKGROUND In 2016, Mal began serving a 12-month term of community custody for several drug convictions. His community custody conditions prohibited him from possessing a firearm and authorized Community Corrections Officer (CCO) Tyler D’Souzato search Mai’ “person, residence, automobile, orotherpersonal property if there is reasonable cause..

. to believe he/she has violated the conditions/requirements ofsupervision.”
IIn October 2016, Roman Casino Surveillance Observer Gus Routos

reported to the Washington State Gambling Commission that a casino employee
saw Mai drop a gun on the floor and put it back in his pants. The report included Mai’s name, driver’s license number, date ofbirth, and lastknown address. Routos reported thattwo othercasino employees told Mai totakethe gun outofthe casino to his car, which he did. Keith Kam, a Special Agentatthe Gambling Commission, received Routos’ report and casino surveillance footage. He filed a case report describing what he observed in the footage. He described “a black semi-automatic style handgun laying on the floor nextto Mai’s chair.” Mai “picked up the firearm and discreetly [put] it in the front waistband of his pants.” Kam later testified to the contents of the video atthe pretrial suppression hearing. When Kam learned that Mai was on communitycustody, he sent his report totheWashington State DepartmentofCorrections. On December 15, 2016, CCO D’Souza reviewed the report and had “huge safety concerns”. He testified atthe suppression hearing that an offender in possession ofafirearm is “something you need to acton quickto make surethat.

. . the community’ssafe, yourteam’s safe” when “home visits are conducted orthe offendercomes

. . . foran office visit.” Within hours of reviewing the report, CCO D’Souza and three otherofficers searched Mai’s residence and found a black handgun. D’Souza arrested Mai and read him his Miranda rights. The CCOs resumed searching Mai’s residence and vehicle and found controlled substances and large amounts ofcash.

2The State charged Mai with attempted first degree unlawful possession of

a firearm. Mai moved to suppress the fruits of the search of his residence and vehicle. Following a hearing, the court upheld the portion ofthe search leading to the discovery ofthe firearm, concluded thatthe subsequent search was unlawful and thatthe drugs found in that portion ofthe search should be suppressed, and entered the following conclusions of law: (c) There is a nexus between the handgun found in the defendant’s house and the suspected probation violation, so the gun found in the defendant’s residence is admissible. (e) The information that led to the search on or about December 15, 2016, was not stale. (h) The nexus test is more ofa locational testthan a temporal test. Based upon the type of contraband, in this case a weapon, the COO’s search of the defendant’s residencewas properand not stale. Following a stipulated bench trial, the trial court convicted Mai as charged. He appeals. STANDARD OF REVIEW In reviewing a trial court’s denial of a motion to suppress, we determine whethersubstantial evidencesupportsthe challenged factualfindingsandwhether the findings supportthe court’s conclusions of law.1 When, as here, the findings
are unchallenged, weacceptthem astrueon appeal.2 We reviewde novowhether thefindings supportthe conclusions of law.3

1 State v. Russell, 180 Wn.2d 860, 866, 330 P.3d 151 (2014). 2 Zunino v. Raiewski, 140 Wn. App. 215, 220, 165 P.3d 57 (2007); State v. 

## .Ery, 168 Wn.2d 1, 5, 228 P.3d 1(2010).

~Zunino, 140Wn. App. at220; Statev. Weller, 185Wn. App. 913, 922, 344 P.3d 695, (2015).
3ANALYSIS Mai contendsthecourterred infailing tosuppressthefirearm becausethere
was an insufficient nexus between the communitycustodyviolation and the search of his residence, and because the information precipitating the search was stale bythe time the search was executed. We disagree. Under article 1, section 7 ofthe Washington State Constitution, individuals have “a robust privacy right”thatprotectsthem from being disturbed in theirprivate affairs or having their home invaded without authority of law.4 Offenders on community custody, however, do not enjoythe full protection ofthis right.5 Their expectation ofprivacy is reduced because they are “serving theirtime outside the prison walls.”6 Accordingly, a COO can conduct a warrantless search of a supervisee/probationer’s person, residence, automobile, or other personal property ifthe CCO has reasonable cause to believe thatthe person violated the conditions of community custody.7 The location to be searched must be limited, however, “to property reasonably believed to have a nexus with the suspected probation violation.”8 (Emphasis added.)

~ State v. Cornwell, 190Wn. 2d 296, 301, 412 P.3d 1265, 1268 (2018).

~ Cornwell, 190Wn.2d at 301. 6 Cornwell, 190Wn.2d at301 (quoting Statev. Olsen, 189Wn.2d 118, 124- 25, 399 P.3d 1141 (2017)).

~ Cornwell, 190Wn.2d at 302. 8 Cornwell, 190Wn.2d at 306. Given the diminished expectations of privacy in CCO searches ofprobationers/supervisees and the reasonable suspicion standard generally applied to such searches, the “reasonably believed” language in Cornwell connotes a reasonable suspicion standard forestablishing a nexus. 4For example, in Cornwell, the court determined there was no nexus

between a defendant’s failure to report to his COO and a search of his vehicle. The COO had “no expectation that the search would produce evidence of Cornwell’sfailureto report.”9 By contrast, the court in Statev. Parris1° determined
a nexus existed when an offender’s mother notified his CCO that he may have obtained a firearm in violation of his probation. An officersearched the offender’s
room and digital memory cards and found photos of guns on the cards. Commenting on Parris, the Cornwell court concluded that a nexus between the memory cards and a suspected violation was undoubtedly satisfied because the COO “believed she mightfind evidence of [an illegal firearm]” on the cards.11 Here, it is undisputed that Mai possessed afirearm in the casino in violation of his community custody conditions. When casino employees approached him, he tookthe gun backto his car. Nothing in the record suggests that Mai intended to relinquish possession of the gun at any point after he left the casino. Significantly, courts have held that, unlike drugs and otherconsumables, guns are likelyto befound at an individual’s home.12 In the circumstances presented here,

~ Cornwell, 190Wn.2d at 306. 10 Statev. Parris, 163Wn. App. 110, 259 P.3d 331 (2011).

~ Cornwell, 190Wn.2d at 305. 12 Statev. Condon, 72 Wn. App. 638, 644, 865 P.2d 521 (1993); State v. Groves, No. 32961-5-Ill, Wash. Ct. App. Feb. 23, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/32961 5_ord.pdf, as amended on denial of reconsideration (May 16, 2017), review denied, 189Wn.2d 1016, 404 P.3d 488 (2017) (“guns, unlike drugs, are likelyto be kept in an individual’s home”). United Statesv. Smith, 182 F.3d 473, 480 (6th Cir. 1999) (“Courts have acknowledged that individuals who own guns keep them attheir homes.”); United States v. Rahn, 511 F.2d 290, 293-94 (10th Cir. 1975) (despite no observations ofguns at residence, there was a sufficient nexus between firearms and residence because “it is pretty normal

... for individuals to keepweapons in their homes.”)
5the trial court did not err in concluding there was a sufficient nexus between the

alleged violation and the location ofthe search, i.e. Mai’s residence. The cases cited by Mai are distinguishable. Several involved the absence ofa nexus between a location and afailureto reportviolation.13 While “there is no nexus between property and [a] failure to report” violation, there was no failure to report in this case.14 Statev. Goble15 does not help Mai because Goblewas nota supervisee/probationer with a diminished expectation of privacy, and the nexus issue in that case involved drugs that might or might not have ended up at the residence policewanted to search.16 Similarly, Statev. Them,17 like Goble, did not involve a supervisee/probationer with a diminished expectation of privacy. Moreover, in concluding there was no nexus between the items to be seized and the suspect’s residence, the court specifically exempted “personal items of continuing utility”, noting that in “specific circumstances it may be reasonable to infersuch items will likely be keptwhere the person lives.”18 State v. Yonker19 is also inapposite. There, the court found a nexus supporting a residential search for ammunition and firearms based on a bullet found outside ofthe probationer’s residence. While the discovery of ammunition

13 Cornwell, 190Wn. 2d 296, State v. Jardinez, 184Wn. App. 518, 528, 338 P.3d 292 (2014); Statev. Lippincott, No. 71522-4-I, slip. Op. at2 (Wash. Ct. App. June 29, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/71 5224.pdf.

14 Cornwell, 190Wn. 2d at 306. 15 Statev. Goble, 88Wn. App. 503, 512, 945 P.2d 263 (1997). 16 Goble, 88Wn. App. at 508. 17 Statev. Them, 138Wn.2d 133, 977 P.2d 582 (1999). 18Them, 138 Wn.2d at 148-49, 149 n4. 19 State v. Yonker, No. 49306-3-Il (Wash. Ct. App. Feb. 21, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049306-3- Il%2oUnpublished%200pinion.pdf.
6so close to Yonker’s residence strongly linked the residence to the suspected

community custody violations, the Yonker court did not hold that the strength of that evidence created an evidentiary baselineforestablishing a nexus. For the first time in his reply brief, Mai contends a nexus cannot exist between a firearm and a residence unless “the defendant used the weapon to commitan additional crime

. . . and the defendant lacks knowledgethatwitnesses have informed law enforcement ofthe defendant’s involvement in the crime.” We need not address arguments raised forthe firsttime in reply.2° Mai also contendsthe search lacked a sufficient nexus and/orwas unlawful because the information precipitating the search was stale by the time Officer D’Souza searched his home 54 days afterthe incident atthe Casino. The testfor staleness is a “commonsense” determination of whether the facts support a conclusion thatthe propertysought is likelystill on the premisesto be searched.21 In making this determination, courts consider the totality of the circumstances, including the passage oftime and the nature ofthe suspected criminal activity. 22 Courts have recognized thatfirearms tend be held for long periods oftime, while consumable items, like drugs, are likely to be consumed or sold at a much

20 King v. Rice, 146Wn. App. 662, 673, 191 P.3d 946 (2008). In addition, Mai’s factual claim in his reply briefthat he knew Casino staff“had reported his alleged possession ofa firearm to theWashington state Gambling Commission” is not supported by any referenceto the record. While evidence tothat effect was presented in a declaration forthe firsttime on reconsideration, it is unclear whetherthe courtexercised its discretion to consider it. Furthermore, while the newevidence indicated that Mai knewthe Gambling Commission was aware of his possession ofafirearm, itdid not indicatethat Mai knewthe Commission reported that information to Mai’s CCO or local law enforcement. 21 Bohannon, 62 Wn. App. 462, 470, 814 P.2d 694 (1991). 22 State v. Maddox, 152 Wn.2d 499, 506, 98 P.3d 1199 (2004).
7faster rate.23 And as previously noted, firearms are likelyto be kept in a person’s

residence. Under the totality ofthe circumstances presented here, we conclude there was a sufficient likelihood that Mai’s firearm would still be found on his premises 54 days after he possessed it atthe casino. Affirmed.

23 Statev. Groves, No. 32961-5-Ill at *35 (“guns, unlike drugs, are likelyto be kept in an individual’s home and are keptfor longer periods oftime”); United Statesv. Houston, 965 F. Supp. 2d 855, 905 (E.D. Tenn. 2013) (although firearmswere observed morethan a year before search warrantwas sought, “guns have an enduring value to thosewho possessthem and are likely to be retained for long periods oftime.”); United States v. Powell, 603 Fed.Appx. 475, 478 (6th Cir. 2015) (despite eight-month time lag, evidence was not stale in part because firearms are durable goods thattend to remain in owner’s possession fora long period oftime); United States v. Hariu, 466 F.3d 602, 608 (7th Cir. 2006) (although threeweeks passed between the gun’s sighting and the warrant’s execution, the gun, unlike drugs orcash, “was not likelyto have been sold (orconsumed) during that period”); United States v. Singer, 943 F.2d 758, 763 & n. 7 (7th Cir.1991) (anonymous report alleging defendant possessed handguns six months before police investigated was not stale because “firearms, unlike drugs, are durable goods useful to theirowners for long periods oftime”); United States v. Steeves, 525 F.2d 33, 38 (8th Cir. 1975) (upholding warrant issued nearly 3 months after bank robbery because “people who own pistols generally keep them at home oron their persons.”).