* In Re The Detention Of: Damon Lee

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Detention of: No. 52717-1-II
DAMON LEE,
Petitioner.
ORDER GRANTING MOTION TO
PUBLISH AND PUBLISHING OPINION
Respondent State of Washington filed a motion to publish this court’s July 28, 2020
opinion. After consideration, the court grants the motion. It is
ORDERED that the final paragraph in the opinion that reads: “A majority of the panel
having determined that this opinion will not be printed in the Washington Appellate Reports but
will be filed for publish record in accordance with RCW 2.06.040, it is so ordered” is deleted. It
is further
ORDERED that the opinion will be published.
PANEL: Jj. Worswick, Melnick, Sutton.
FOR THE COURT:
Melnick, J.
Filed
Washington State
Court of Appeals
Division Two
September 9, 2020
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Detention of: No. 52717-1-II
DAMON LEE,
Petitioner.
UNPUBLISHED OPINION
MELNICK, J. — Damon Lee, a sexually violent predator (SVP), received his conditional
release from the Special Commitment Center (SCC) to a less restrictive alternative (LRA). In the
LRA order, the trial court created a transition team to manage Lee’s conditional release. Lee
argues that the delegation of authority to the transition team violated the separation of powers
doctrine as well as the statutory scheme governing conditional release, that the conditions imposed
in the LRA order violate his right to due process, and that the search provision in the LRA order
violates his right to privacy. We affirm the trial court.
FACTS
I. LEE’S HISTORY OF SEXUAL VIOLENCE
Lee is in his sixties and has an extensive history of sexual violence. His sexual assault
victims ranged from 2 to 39 years of age. Several of his victims were strangers. He utilized
surprise, weapons, physical restraints, and threats of death during his assaults.
Lee’s first reported assault occurred when he was 15 years old, and a 14-year-old girl
reported that he sexually assaulted her in the woods. Lee’s first arrest for sexual assault occurred
Filed
Washington State
Court of Appeals
Division Two
July 28, 2020
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in 1973, when at the age of 17 years old, a 6-year-old girl reported that Lee grabbed her while she
was on her way to school, placed a knife against her neck, and put his penis in her mouth. Lee
admitted to the crime and received a 20-year prison sentence. He only disputed that he had a
“piece of metal” and not a knife. Clerk’s Papers (CP) at 489.
While on parole in 1979, Lee committed two non-sexual assaults. The court revoked his
parole and he served the remainder of his term in prison. Lee later admitted that while on parole
he attempted to put his penis in a 2-year-old male’s mouth. This crime did not get prosecuted.
In 1982, Lee escaped from prison and, nine days later, committed an armed robbery in
California. The court sentenced Lee to 30 months in confinement and, after serving time in
California, he returned to Washington to complete his previous sentence.
In 1990, Lee picked up a female hitchhiker in the Tacoma area, stopped behind a building,
pointed a gun at her, and directed her to perform oral sex on him in the vehicle. Lee then drove to
an alley, ordered the woman into an open garage, threatened to “cap [her]” if she fought, and
vaginally raped her. CP at 490-91. The police arrested Lee and a subsequent search of his
apartment yielded “a significant number” of guns, knives, handcuffs, newspaper articles about two
rape investigations, and an album labeled “Conquest Book” that contained photos of men and
women engaged in sexual activities. CP at 492.
After his arrest, Lee was identified as a suspect in at least six other rape cases that occurred
in the Tacoma area between 1988 and 1990. Lee pled guilty to one count of rape in the first degree
and, as part of his plea agreement, prosecutors agreed not to charge Lee with any further sexual
offenses. Lee later admitted to forcing approximately 55 women to engage in sexual activity
between 1988 and 1990. Lee has been incarcerated or involuntarily committed since 1990.
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II. PROCEDURAL HISTORY
In 2004, a jury found Lee to be an SVP. The court committed him to the SCC on McNeil
Island, operated by the Department of Social and Health Services (DSHS).
In 2017, an annual review report opined that even though Lee continued to be an SVP, he
should be conditionally released to a LRA. The SCC Chief Executive Officer authorized Lee to
petition for a LRA. Lee petitioned the court for an unconditional release. After two mistrials, the
State stipulated that Lee was eligible for conditional release to a LRA.
In a proposed LRA order, the State recommended the appointment of a “transition team,”
consisting of the sex offender treatment provider, the assigned community corrections officer
(CCO), and a designated representative from the SCC, to oversee and implement the LRA order.
Lee would be required to obey written and verbal instructions from the transition team, and to seek
their approval before participating in employment or educational opportunities, accessing the
internet, obtaining a driver’s license or driving, and possessing images of children, among others.
The proposed order also forbade Lee from possessing a gun; entering adult entertainment
establishment where nudity, erotic entertainment, or literature were for sale; consuming alcohol or
controlled substances; accessing “chat lines”; and more.
Lee objected to the imposition of a transition team, all conditions that involved decision-
making by the transition team, and a condition that would require him to submit to searches of his
person or property at the discretion of his CCO. As part of his objection, Lee submitted testimony
from Marcus Miller, the CCO who investigated his LRA proposal, that as long as no conflict
existed with a LRA order, transition teams could impose conditions in the interest of “community
safety or the person’s safety.” CP at 668.
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Following a hearing on the contested LRA conditions, the trial court appointed a transition
team, adopted the State’s proposed conditions, and added a provision that it retained jurisdiction
to modify the LRA order upon the motion of either party. In total, the LRA order contains 14
pages of conditions, including the following.
A. RESIDENTIAL CONDITIONS:
. . . .
5. Mr. Lee and [proposed landlord] shall permit home and property
visits by any member of the Transition Team or designee for visual inspection of
the residence, garage, and other structures on the property to ensure compliance
with his Court Order. To maintain compliance with the conditions of the LRA
Court Order, Mr. Lee shall submit to searches of his person, computer, cellphone,
residence, or property at the discretion of the supervising CCO.
. . . .
C. TREATMENT CONDITIONS:
. . . .
3. Mr. Lee shall participate in any treatment, including, but not limited
to sex offender treatment and any other treatment or therapy, as recommended by
the Transition Team and approved by DSHS/SCC.
. . . .
D. STANDARD CONDITIONS:
. . . .
7. Mr. Lee shall not have intentional, regular conduct with any person
who has not previously been approved by his Transition Team or the Court.
Incidental contact with individuals for business-related purposes is not considered
“intentional regular contact.” This condition does not apply to individuals
participating in Mr. Lee’s treatment groups, AA meetings and mandatory activities,
his attorney, [the proposed landlord], experts retained by his legal team, or agents
of his attorney’s law office. The Court or the Transition Team may review and
modify this condition in writing with respect to specific individuals.
. . . .
11. Mr. Lee shall not purchase, possess, use, access, or view any
sexually explicit material as defined by RCW 9.68.130, erotic materials defined by
RCW 9.68.050, or any material depicting any person engaged in sexually explicit
conduct as defined by RCW 9.68A.011(4). Mr. Lee shall not intentionally or
negligently purchase, posses[s], play or view movies, television programming,
printed materials, or video games for the purpose of causing or enhancing sexual
arousal. This prohibition includes, but is not limited to, materials depicting
consensual sex, sex with violence or force, sex with non-consenting adults, or
sexual activity with children. Mr. Lee shall follow the procedure established by his
Transition team if he inadvertently views, possesses, or interacts with media or
material that could arguably violate this condition.
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The [sex offender treatment provider] SOTP may make exceptions to
specifically identified sexually explicit or erotic materials upon written notification
to the other members of the Transition Team. Mr. Lee shall not share any approved
materials with any other person.
12. Mr. Lee shall not purchase, possess, view, or play any R-rated
movies or M-rated video games. Mr. Lee shall not intentionally or negligently
purchase, possess, play, or view movies, television shows, printed materials, or
video games depicting sexual themes, children’s themes, or excessive violence.
The Transition Team may make exceptions to specifically identified games, shows,
movies, or printed materials. The Transition Team will resolve any questions as to
what constitutes sexual themes, children’s themes, or excessive violence. Mr. Lee
shall follow the procedure established by his Transition Team if he inadvertently
views or possesses media or material that could arguably be depicting sexual
themes, children’s themes, or excessive violence.
. . . .
E. SPECIAL CONDITIONS:
. . . .
2. Mr. Lee shall not possess images of children or view media directed
toward or focused on children without the prior consent of his Transition Team.
Possession of visual depictions of semi-clad or naked children is prohibited. The
Transition Team shall define in writing what “directed towards or focused on”
means.
. . . .
5. Prior to Mr. Lee’s release from total confinement, the SCC shall
provide a list of all approved media (books, movies, video games, CDs, etc.) to the
assigned CCO. The Transition Team may approve or disapprove any of the items
on the list. Any additional media must be pre-approved by the Transition Team
prior to purchase, rental, and/or possession. If the SOTP approves media without
the full agreement of the other Transition Team members, she shall provide notice
of the decision to the other Transition Team members.
CP at 295, 297, 298, 299, 300, 301, 302-03, 306, 307. Lee appealed.
III. TRANSITION TEAMS
Julia Crabbe has worked at the SCC since 2003, and began serving as the Community
Programs Administrator in 2009. To her knowledge, every conditional release of an SVP to an
LRA placement has involved a court appointed transition team, generally consisting of the
person’s sex offender treatment provider, the assigned CCO, and a representative from the SCC.
Transition teams manage the “day-to-day logistics” of a person on conditional release and
they make decisions and recommendations related to “day-to-day activities,” as set out in the LRA
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order. CP at 164-65. Transition teams usually meet on a monthly basis to review and discuss the
SVP’s status and progress in treatment, but they communicate with each other, as needed, if issues
requiring immediate attention arise. Teams usually meet in private, with the first part of the
meeting being issue discussion and decisions making. The second part involves a “check-in” with
the SVP and a discussion of decisions the team has made. CP at 775. Teams are not required to
provide any record of what information they considered when reaching a decision.
As a part of their duties, the transition team is generally empowered by the commitment
court to review trip plans, allow or restrict regular contact with victims and minors, approve
educational or employment activities, approve the purchase or possession of R-rated media,
require drug or alcohol testing, inspect cell phones and call data, and make other decisions related
to the conditions imposed by the court. Transition teams are also generally empowered to consider
other requests, such as a lessening of escort requirements or requests to obtain additional treatment,
among others.
While the sex offender treatment provider is responsible for the SVP’s ongoing sex
offender treatment, the CCO is responsible for providing “ongoing supervision per the court order”
and monitoring compliance with the release conditions. CP at 724.
Lee appeals.
ANALYSIS
I. THE LRA ORDER DOES NOT VIOLATE SEPARATION OF POWERS OR APPLICABLE STATUTORY
SCHEME
A. Background — Sexually Violent Predators
SVPs are a “small but extremely dangerous group” of persons suffering from mental
abnormalities or personality disorders that make them “likely to engage in sexually violent
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behavior” where the “likelihood of engaging in repeat acts of predatory sexual behavior is high.”
RCW 71.09.010.
Washington commits SVPs for control and treatment in secure facilities. RCW
71.09.060(1). Secure facilities may be a total confinement facility, a secure community transition
facility, or a sufficiently secure residence used for a court-ordered placement. RCW
71.09.020(16). Following annual mental health evaluations, SVPs committed to total confinement
may petition for unconditional discharge or conditional release to a secure facility in the
community. RCW 71.09.090. Unconditional discharge may only occur if the person seeking
discharge no longer meets the definition of an SVP. RCW 71.09.060(1), .090.
Conditional release to confinement in a LRA in the community is available to persons who
continue to be classified as SVPs who are “likely to engage in predatory acts of sexual violence if
not confined in a secure facility.” RCW 71.09.020(18), .090(1). But a conditional release may
only be ordered by a court if it is in the SVP’s best interests, conditions can be imposed to
adequately protect the public, and mental health treatment and supervision requirements can be
met. RCW 71.09.092, .096(1). Before being conditionally released to a LRA, the SVP must agree
to comply with all treatment requirements imposed by the treatment provider, the court, and
supervision conditions imposed by the Department of Corrections (DOC). RCW 71.09.092(4),
(5). To ensure that all treatment requirements are met, the treatment provider must inform the
court of treatment compliance and report any violations to the court, the prosecutor, and a CCO.
B. Delegation of Authority Under RCW 71.09.092 and RCW 71.09.096
Lee argues that, by allowing the transition team to create and modify conditions of the LRA
order, the court improperly delegated authority reserved to the court. We disagree.
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Under RCW 71.09.092, only a court can order the release of an SVP to a LRA. To enter
such a finding, the court must find the following:
(1) The person will be treated by a treatment provider who is qualified to provide
such treatment . . . ; (2) the treatment provider has presented a specific course of
treatment . . .; (3) housing exists in Washington that is sufficiently secure to protect
the community . . . ; (4) the person is willing to comply with the treatment provider
and all requirements imposed by the treatment provider and by the court; and (5)
the person will be under the supervision of the department of corrections and is
willing to comply with supervision requirements imposed by the department of
corrections.
RCW 71.09.092 (emphasis added).
Under RCW 71.09.096(2), (4), the trial court has the authority to “impose any additional
conditions necessary to ensure compliance with treatment and to protect the community” and, prior
to authorizing a release to a LRA, it “shall impose such conditions upon the person as are necessary
to ensure the safety of the community.”
The argument that a trial court cannot delegate any of its authority to create or modify
conditions of community placement has been rejected by courts in similar contexts. This court has
considered several challenges to DOC’s authority to impose community custody conditions in
cases arising from the Sentencing Reform Act of 1981. We have determined that “[s]entencing
courts have the power to delegate some aspects of community placement to the DOC.” State v.
Sansone, 127 Wn. App. 630, 642, 111 P.3d 1251 (2005); see also State v. McWilliams, 177 Wn.
App. 139, 152-53, 311 P.3d 584 (2013); In re Pers. Restraint of Golden, 172 Wn. App. 426, 290
P.3d 168 (2012).
In State v. Autrey, the defendant argued that a community custody condition requiring him
to obtain prior approval from his CCO before engaging in sexual contact improperly delegated this
authority to his CCO, but we concluded “[i]t is well settled that some delegation of the court’s
power is permitted.” 136 Wn. App. 460, 469, 150 P.3d 580 (2006). In McWilliams, this court
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explained that, while the decision to impose a sentence is the function of the courts, the decisions
made to execute the sentence and reform the offender “are administrative in character and are
properly exercised by an administrative body.” 177 Wn. App. at 154 (quoting Sansone, 127 Wn.
App. at 642); see also State v. Mulcare, 189 Wash. 625, 628, 66 P.2d 360 (1937).
Here, the SVP statutes grant the court explicit authority to “impose any additional
conditions necessary to ensure compliance with treatment and to protect the community.” RCW
71.09.096(2). What Lee characterizes as a delegation of “nearly unlimited authority,” to the
transition team1 is in actuality a delegation of day-to-day administration. While the court may
have the sole authority to grant a conditional release, the management of the day-to-day
administration of a LRA order is administrative in nature, and the court can delegate administrative
decisions. Because the conditions requiring Lee to comply with requirements imposed by the
treatment provider and the DOC, representatives of which make up two-thirds of the transition
team, are consistent with the statutory scheme, we reject Lee’s claim.
B. Excessive Delegation
Lee also argues that the delegation was excessive. Even when delegation is authorized,
courts may not delegate “excessively.” Sansone, 127 Wn. App. at 642. In Sansone, the trial court
imposed a community supervision condition requiring Sansone to not possess or peruse
pornography without prior approval of his probation officer, and left the definition of
“pornography” to be defined by the probation officer. Throughout the proceedings, several “quite
different” definitions of pornography were presented. Sansone, 127 Wn. App. at 642-43. This
court concluded that, although delegation to define a term in a community placement condition
1 Lee replies on testimony from CCO Miller for this contention, but a review of his testimony
shows that Miller also explicitly stated that the conditions imposed could not conflict with the
LRA order.
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may be permissible in some circumstances, the delegation in this case was excessive because of
vagueness. However, this court also said it “would not necessarily be improper if Sansone were
in treatment and the sentencing court had delegated to the therapist to decide what types of
materials Sansone could have.” Sansone, 127 Wn. App. at 643.
In United States v. Morin, 832 F.3d 513, 514-15 (5th Cir. 2016), the trial court granted a
sex offender treatment provider the authority to impose unspecified “lifestyle restrictions” on the
offender as part of a supervised release program imposed as part of a criminal sentence. The court
held that this delegation improperly permitted the treatment provider to impose “independent
conditions of supervised release” that “might extend beyond the period of supervised release”
because the court had “exclusive authority to impose sentences.” Morin, 832 F.3d at 517-18. It
would have been appropriate for the court to delegate the “manner and means” of therapy to be
administered by the treatment provider, but a delegation of unspecified “lifestyle restrictions” was
excessive. The Morin court specifically mentioned the difference between its case and United
States v. Fellows, 157 F.3d 1197 (9th Cir. 1998). Morin, 832 F.3d at 517. In Fellows, the court
upheld a condition directing the defendant to “‘follow all other lifestyle restrictions or treatment
requirements’ imposed by his therapist.” 157 F.3d at 1200. The Morin court noted that the
challenged condition in Fellows “was tethered to the treatment program; it did not permit the
therapist to impose conditions that would extend beyond the treatment program.” Morin, 832 F.3d
at 517.
Here, the court dictated 14 pages of detailed conditions for Lee to follow, leaving only
specific details and a few undefined terms to the transition team, which included Lee’s sex offender
treatment provider. For example, as set forth above, the court forbade Lee to
“purchase [or] possess . . . movies, television shows, printed materials, or video
games depicting sexual themes, children’s themes, or excessive violence. The
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Transition Team may make exceptions to specifically identified games, shows,
movies, or printed materials. The Transition Team will resolve any questions as to
what constitutes sexual themes, children’s themes, or excessive violence.”
CP at 302-03. Lee claims that leaving the definition of “sexual themes, children’s themes, or
excessive violence” to the transition team is excessive delegation.2 It is worth noting that, where
available, the court did cite statutory definitions for terms, such as sexually explicit material, erotic
material. Here, with such terms as “children’s themes” and “excessive violence,” which are
targeted to Lee’s status as an SVP and history of sexual assaults involving violence and children,
the court left the scope to the professional judgment of the treatment provider. This delegation, of
the types of materials allowed a patient in treatment, is consistent with Sansone and does not
resemble the unspecified “lifestyle restrictions” untethered from a treatment program prohibited
in Morin.
Lee also challenges the provision ordering him to participate in “sex offender treatment
and any other treatment or therapy, as recommended by the Transition Team and approved by
DSHS/SCC.” CP at 299. Courts have found requirements to participate in treatments only if
ordered to do so by a probation officer to be impermissible delegations of judicial authority. See
United States v. Peterson, 248 F.3d 79 (2d Cir. 2001). As it stands, however, the court is barred
from even considering conditional release without the agreement of a treatment provider who “has
presented a specific course of treatment and has agreed to assume responsibility for such
treatment.” RCW 71.09.092(2). As a condition of his release to a LRA, Lee is already under
obligation to participate in treatment as ordered by his treatment provider. This condition complies
2 Lee claims that he is also “barred . . . from possessing materials depicting ‘consensual sex.’” Br.
of Appellant at 17. This is misleading because “materials depicting consensual sex” is modified
by “for the purpose of causing or enhancing sexual arousal” in the LRA order, and does not need
additional clarification. CP at 302.
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with the requirements from Morin and Fellows and is notably different from requiring a person to
participate in treatment as unilaterally ordered by a probation officer.
Accordingly, we conclude that the conditions in the LRA order are not an excessive
delegation of authority.
II. THE LRA ORDER DOES NOT VIOLATE LEE’S RIGHT TO DUE PROCESS
Lee argues that provisions of the LRA order violate his right to due process because they
are unconstitutionally vague and lack the procedural framework to ensure fairness. We disagree.
Conditions of release are reviewed for abuse of discretion and will be reversed only if they
are manifestly unreasonable, but the imposition of an unconstitutional condition qualifies as
manifestly unreasonable. See State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008).
A. Lee’s Restricted Access to Media
Lee argues that, except for the provisions citing specific statutory definitions, all of the
conditions in the LRA restricting his access to certain media, including conditions prohibiting
media depicting “sexual themes,” “children’s themes,” “excessive violence,” “images of children,”
or “media directed toward or focused on children,” are unconstitutionally vague and an
infringement on his First Amendment rights.3,4 Br. of Appellant at 22. We disagree.
3 Lee does not argue that the condition violates article I, section 5 of the Washington Constitution.
4 In footnotes, Lee also argues that a provision requiring him to “not frequent or loiter outside of
establishments that cater primarily to minors,” including “elementary schools, junior high or
middle schools, high schools, daycares, parks, recreation areas, playgrounds, school bus stops,
swimming pools, zoos, and arcades” is unconstitutionally vague. CP at 301; Br. of Appellant at
18 n.19, 22 n.24. We do not need to consider arguments raised solely in footnotes. State v. N.E.,
70 Wn. App. 602, 606 n.3, 854 P.2d 672 (1993). It is, however, worth noting that similar
provisions barring offenders from places where children “congregate,” accompanied by
nonexclusive lists of illustrative examples, have recently been upheld. State v. Wallmuller, 194
Wn.2d 234, 241, 449 P.3d 619 (2019).
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“[T]he due process vagueness doctrine under the Fourteenth Amendment and article I,
section 3 of the state constitution requires that citizens have fair warning of proscribed conduct.”
Bahl, 164 Wn.2d at 752. Its purpose is to ensure citizens have fair warning of what conduct must
be avoided and protect those citizens from arbitrary enforcement. Bahl, 164 Wn.2d at 752-53.
A court order is unconstitutionally vague if “either a reasonable person would not
understand what conduct is prohibited or if it lacks ascertainable standards that prevent arbitrary
enforcement.” State v. Casimiro, 8 Wn. App. 2d 245, 250, 438 P.3d 137, review denied, 193
Wn.2d 1029 (2019). When determining if a term is unconstitutionally vague, courts do not
consider the term in a vacuum, but instead consider it in the context in which it is used. Bahl, 164
Wn.2d at 754. “‘[I]mpossible standards of specificity’ or ‘mathematical certainty’ are not required
because some degree of vagueness is inherent in the use of language.” State v. Halstien, 122
Wn.2d 109, 118, 857 P.2d 270 (1993) (quoting City of Seattle v. Eze, 111 Wn.2d 22, 26-27, 759
P.2d 366 (1988)). Rather, if a person “of ordinary intelligence can understand what the [condition]
prescribes, notwithstanding some possible areas of disagreement, the [condition] is sufficiently
definite.” City of Spokane v. Douglass, 115 Wn.2d 171, 179, 795 P.2d 693 (1990).
Additionally, if a statute or other legal standard concerns material that is protected under
the First Amendment protections of speech or expressive conduct, a vague standard is even more
concerning, because it can have a chilling effect on First Amendment freedoms. Grayned v. City
of Rockford, 408 U.S. 104, 109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Accordingly, “a stricter
standard of definiteness applies if material protected by the First Amendment falls within the
prohibition.” Bahl, 164 Wn.2d at 753. To avoid conflict with the First Amendment, a condition
of release must be “narrowly tailored” and “directly related” to the goals of protecting the public
and promoting rehabilitation. United States v. Loy, 237 F.3d 251, 256 (3rd Cir. 2001).
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Because the issue of First Amendment rights governs the strictness of our review of
unconstitutional vagueness, we begin with that issue. Here, Lee argues that the media prohibited
by the LRA order is not narrowly tailored nor directly related to protection of the public or Lee’s
treatment needs. Lee claims that the language of “sexual themes, children’s themes, or excessive
violence” is so broad as to cover nearly every work of literature, art, or popular culture.
Setting aside the many works that would not be covered by those definitions, Lee has a
long history of sexual violence, including sexual violence toward children. It is not unreasonable
to believe that preventing Lee from accessing materials involving sexual conduct, children’s
themes, and excessive violence is narrowly tailored to help in his treatment as an SVP who has
previously targeted children. The conditions in question allow Lee to request approval for specific
media, even if it falls in a prohibited class, and for a small team involving his sex offender
treatment provider to determine whether or not the media would be appropriate for him.
Accordingly, we conclude that the provisions prohibiting certain media do not violate Lee’s First
Amendment rights.
Turning to the question of vagueness, Lee is contesting every condition restricting his
access to media that does not contain a reference to a specific statutory definition, to specifically
include conditions, in his words, prohibiting media depicting “consensual sex,” “sexual themes,
children’s themes, or excessive violence,” “images of children,” or “media directed toward or
focused on children.” Br. of Appellant at 22. The contested provisions actually state:
11. Mr. Lee shall not purchase, possess, use, access, or view any
sexually explicit material as defined by RCW 9.68.130, erotic materials defined by
RCW 9.68.050, or any material depicting any person engaged in sexually explicit
conduct as defined by RCW 9.68A.011(4). Mr. Lee shall not intentionally or
negligently purchase, posses[s], play or view movies, television programming,
printed materials, or video games for the purpose of causing or enhancing sexual
arousal. This prohibition includes, but is not limited to, materials depicting
consensual sex, sex with violence or force, sex with non-consenting adults, or
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sexual activity with children. Mr. Lee shall follow the procedure established by his
Transition team if he inadvertently views, possesses, or interacts with media or
material that could arguably violate this condition.
The SOTP may make exceptions to specifically identified sexually explicit
or erotic materials upon written notification to the other members of the Transition
Team. Mr. Lee shall not share any approved materials with any other person.
12. Mr. Lee shall not purchase, possess, view, or play any R-rated
movies or M-rated video games. Mr. Lee shall not intentionally or negligently
purchase, possess, play, or view movies, television shows, printed materials, or
video games depicting sexual themes, children’s themes, or excessive violence. The
Transition Team may make exceptions to specifically identified games, shows,
movies, or printed materials. The Transition Team will resolve any questions as to
what constitutes sexual themes, children’s themes, or excessive violence. Mr. Lee
shall follow the procedure established by his Transition Team if he inadvertently
views or possesses media or material that could arguably be depicting sexual
themes, children’s themes, or excessive violence.
. . . .
2. Mr. Lee shall not possess images of children or view media directed
toward or focused on children without the prior consent of his Transition Team.
Possession of visual depictions of semi-clad or naked children is prohibited. The
Transition Team shall define in writing what “directed towards or focused on”
means.
CP at 302-03, 307. Lee mentions several times that the prohibited media “is broad enough to cover
a movie such as Titanic, the DSHS pamphlet ‘Eating Well for Less,’ and artwork created in
previous centuries.” Br. of Appellant at 22; see also Br. of Appellant at 6, 17.5 But Lee’s assertion
lacks context. The items must be “intentionally or negligently” viewed. CP at 302. Some of the
items are prohibited only if viewed “for the purpose of causing or enhancing sexual arousal.” CP
at 302. A person of ordinary intelligence would be able to view the prohibited materials list and
know what materials to avoid.
5 This specific set of examples arises from a series of questions Lee’s counsel asked Miller,
regarding if each of the examples could be considered “pornography” or otherwise in violation
under the LRA order general condition number 11 or special condition number 2. Setting aside
the fact that condition number 11 does not use the word “pornography,” Miller began his answer
with an explanation that the definition of prohibited materials would be different for different
offenders, based on their specific cases.
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For additional clarity in determining what materials are prohibited, another provision gives
precise notice of what materials are approved:
Prior to Mr. Lee’s release from total confinement, the SCC shall provide a list of
all approved media (books, movies, video games, CDs, etc.) to the assigned CCO.
The Transition Team may approve or disapprove any of the items on the list. Any
additional media must be pre-approved by the Transition Team prior to purchase,
rental, and/or possession. If the SOTP approves media without the full agreement
of the other Transition Team members, she shall provide notice of the decision to
the other Transition Team members.
CP at 307 (emphasis added). Taken together, there can be little uncertainty in what materials are
prohibited and, if Lee wants to purchase or possess a material not on the approved list, he knows
he must seek pre-approval from the transition team. We conclude that the conditions restricting
what types of media Lee may access are sufficiently definite to notify Lee of the type of media he
must avoid.
B. Ascertainable Standards
Lee also briefly argues that, as part of unconstitutional vagueness, the LRA order does not
provide an ascertainable standard to guide the transition team’s decision making. We disagree.
As stated above, a court order is unconstitutionally vague if either “a reasonable person
would not understand what conduct is prohibited or if it lacks ascertainable standards that prevent
arbitrary enforcement.” Casimiro, 8 Wn. App. 2d at 250 (emphasis added). Aside from the
general rule requiring ascertainable standards in Casimiro, the parties cite little authority in support
of their arguments. RCW 71.09.096 requires that a conditional release both be in the best interest
of the person to be released and designed to protect the community, but the LRA order does not
specifically repeat this standard. Accordingly, even though the standard is not explicitly stated in
the LRA order, it is in the governing statutory scheme. We conclude that the Transition Team’s
decision making is guided by an ascertainable standard.
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C. Procedural Due Process
Lee argues that, because the transition team has the authority to restrict his liberty interests,
the LRA order’s failure to specifically outline procedures governing the team’s exercise of their
authority is a violation of procedural due process under the federal and state constitutions. We
disagree.
Under the Fourteenth Amendment to the United States Constitution, government may not
deprive an individual of "life, liberty, or property without due process of law." U.S. CONST.
amend. XIV, § 1.6 When a state seeks to deprive a person of a protected interest, procedural due
process requires that the person receive notice of the deprivation and an opportunity to be heard
“‘at a meaningful time and in a meaningful manner’” appropriate to the case. Mathews v. Eldridge,
424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S.
545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965)); see also Yim v. City of Seattle, 194 Wn.2d 682,
688, 451 P.3d 694 (2019).
Here, before the LRA order can be revoked, RCW 71.09.098 entitles Lee to procedural
safeguards, including a hearing. At any such hearing, the State would bear the burden of proof to
show that Lee violated the conditions of release. RCW 71.09.098(5)(c). While it is possible that
Lee’s movement might be restricted or that he could be taken into custody pending a hearing, the
court must “promptly schedule a hearing” if he is taken into custody. RCW 71.09.098(3)(b).
If Lee disagrees with a decision made by the transition team, he also has the right to petition
the court to review the team’s decision and modify the LRA order. Lee’s arguments portray the
6 “Washington’s due process clause does not afford broader protection than that given by the
Fourteenth Amendment to the United States Constitution.” State v. McCormick, 166 Wn.2d 689,
699, 213 P.3d 32 (2009).
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operation of the transition team as a dramatic departure from the terms of the LRA order, but their
power is limited to the terms contained in the order, which was imposed by the trial court after a
full hearing. For example, Lee alleges that the transition team could “prohibit him from speaking
with anyone.” Br. of Appellant at 26. But the LRA order is what specifically forbids Lee from
calling anyone other than approved chaperones, members of his transition team, or his legal team,
without pre-approval from the transition team.
Accordingly, we conclude that the procedural safeguards in RCW 71.09.098 sufficiently
protect Lee’s procedural due process rights
III. THE LRA ORDER’S SEARCH PROVISION DOES NOT VIOLATE LEE’S RIGHT TO PRIVACY
Lee argues that the condition requiring him to “‘submit to searches of his person, computer,
cellphone, residence, or property at the discretion of the supervising CCO,’” without imposing
limitations, violates his privacy rights under the Fourth Amendment to the United States
Constitution and article 1, section 7 of the Washington Constitution. Br. of Appellant at 29
(quoting CP at 297). We disagree.
Washington’s constitution “‘recognizes an individual’s right to privacy with no express
limitations’ and places greater emphasis on privacy” than the federal constitution. State v. Ladson,
138 Wn.2d 343, 348-49, 979 P.2d 833 (1999) (internal quotation marks omitted) (quoting State v.
Young, 123 Wn.2d 173, 180, 867 P.2d 593 (1994)). The privacy right that Washington’s article 1,
section 7, protects is not absolute, however, and the State “may reasonably regulate this right [in
order] to safeguard society.” State v. Meacham, 93 Wn.2d 735, 738, 612 P.2d 795 (1980); see also
In re Det. of Williams, 163 Wn. App. 89, 97, 264 P.3d 570 (2011). The State may reduce an
individual’s right to privacy to the extent “‘necessitated by the legitimate demands of the operation
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of the [community supervision] process.’” State v. Cornwell, 190 Wn.2d 296, 303-04, 412 P.3d
1265 (2018) (quoting State v. Olsen, 189 Wn.2d 118, 125, 399 P.2d 1141 (2017)).
Washington courts have specifically recognized the reduced privacy interests of sex
offenders due to the threat they pose to public safety. In re Det. of Campbell, 139 Wn.2d 341, 356,
986 P.2d 771 (1999) (“the truncated privacy interests of the convicted sex offender” are
outweighed by a substantial interest in public safety); see also Det. of Williams, 163 Wn. App. at
97.
Lee argues that, whatever the “legitimate demands” of the LRA supervision process, the
search provision in the LRA order must have some limitations. Br. of Appellant at 31. In support
of his argument, Lee relies on the cases of Cornwell, 190 Wn.2d at 303-04, and Arnzen v. Palmer,
713 F.3d 369, 372 (8th Cir. 2013). Both are factually distinguishable from this case.
In Cornwell, which Lee cites for the proposition that persons with reduced expectations of
privacy “do not forfeit all expectations of privacy in exchange for their release into the
community,” the Sentencing Reform Act expressly required a CCO to have “reasonable cause to
believe that an offender has violated a condition or requirement of the sentence” before searching
a person on probation. 190 Wn.2d at 302-03; RCW 9.94A.631(1). There is no such requirement
in the SVP statute. Ch. 71.09 RCW.
Arnzen involved the placement of cameras in a commitment facility’s bathrooms. 713 F.3d
at 372. The court upheld a preliminary injunction prohibiting the cameras in single-person
bathrooms and denied a preliminary injunction seeking to prevent the use in multi-person
bathrooms. Arnzen, 713 F.3d at 371. Regarding the single-person bathrooms, the court noted that
the cameras operated without any “indication that [the bathroom was] being used for purposes
other than those ordinarily associated with bathroom facilities” and were therefore a violation of
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the patients’ reasonable expectation of privacy. Arnzen, 713 F.3d at 373. The placement of the
cameras into bathrooms was an important factor, because the court also noted that the detainees
“[did] not have a reasonable expectation of privacy in their jail cells.” Arnzen, 713 F.3d at 372.
Lee is an SVP who is confined to a secure facility7 and, by law, is considered mentally ill,
dangerous, and likely to reoffend. RCW 71.09.020(18). As such, he does not have a reasonable
expectation of privacy in his residence or possessions. For the protection of the public, Lee’s
community corrections officer must be able to search Lee and his possessions at any time. The
“legitimate demands” of the LRA supervision process necessitate random searches, and we hold
that the substantial interest in protecting the public from Lee outweighs his reduced privacy
interest.
We affirm the trial court.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Melnick, J.
We concur:
Worswick, J.
Sutton, A.C.J.
7 “Secure Facility” includes both “total confinement facilities” and “any residence used as a court-
ordered placement under RCW 71.09.096.” RCW 71.09.020(16).
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