IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SIMONE A. BAILEY-COBB, No. 87585-0-I
Appellant,
consolidated with
v.
SNOHOMISH COUNTY DISTRICT
COURT, THE HONORABLE JUDGE
JENNIFER RANCOURT,
Respondent.
ANDREW P. TOOMBS, No. 87738-1-I
Appellant, DIVISION ONE
v.
PUBLISHED OPINION
SNOHOMISH COUNTY DISTRICT
COURT, THE HONORABLE JUDGE
JENNIFER RANCOURT,
Respondent.
SMITH, J. — The State charged Simone Bailey-Cobb and Andrew Toombs
with driving under the influence and, as a condition of their pretrial release, the
court required them to wear transdermal drug-monitoring patches. Bailey-Cobb
and Toombs petitioned for writs of habeas corpus, challenging the imposition of
the drug patch as a condition of pretrial release. The trial court denied the
petitions. Bailey-Cobb and Toombs appealed, alleging the drug-monitoring patch No. 87585-0-I(consol. with No. 87738-1-I)/2
violated article I, section 7 of the Washington State Constitution. Additionally,
Bailey-Cobb contended the trial court erred in finding she would interfere with the
administration of justice, and Toombs claimed the trial court did not make the
requisite findings under CrRLJ 3.2 to impose any conditions. We conclude that
Bailey-Cobb and Toombs did not suffer diminished privacy interests as pretrial
releasees, and the court’s imposition of a drug-monitoring patch violated their
rights under article I, section 7. Accordingly, we reverse and remand for the trial
court to remove the drug-monitoring patch condition from Bailey-Cobb’s and
Toombs’s pretrial release requirements.
FACTS
Background
1. Simone Bailey-Cobb
In September 2024, Snohomish County law enforcement arrested Simone
Bailey-Cobb on an allegation of driving under the influence (DUI). At BaileyCobb’s arraignment, the State did not appear, but it submitted an affidavit of
probable cause and requested bail be set at $25,000 and that Bailey-Cobb
adhere to several conditions, including that she wear a drug-monitoring patch.1
Bailey-Cobb objected to the condition that she wear a drug-monitoring patch,
arguing the patch violated her right to privacy under article I, section 7 of the
Washington State Constitution. The court imposed the condition, stating it found
the request “to be well-founded based on the significant prior criminal history
1 A drug-monitoring patch is worn on the skin and collects sweat to test for drugs.
2
No. 87585-0-I(consol. with No. 87738-1-I)/3
which involves not only violent offenses but a pattern of operating a large motor
vehicle . . . while under the influence of various intoxicants.”2 The court noted
Bailey-Cobb had a deferred prosecution in which she admitted to a “substantial
problem” with drugs and alcohol, and this pattern of behavior “demonstrate[s]
that she is a significant risk to the community.”
Bailey-Cobb petitioned the court for a writ of habeas corpus, contending
she was unlawfully restrained by the court’s imposition of the drug-monitoring
patch. The court denied Bailey-Cobb’s petition, holding the drug-monitoring
patch constituted a search, but authority of law under RCW 10.21.045 and
CrRLJ 3.2 supported the search. Bailey-Cobb appealed.
2. Andrew Toombs
In July 2024, Snohomish County law enforcement arrested Andrew
Toombs on an allegation of DUI. At Toombs’s arraignment, the State requested
bail be set at $5,000 and the standard DUI conditions apply.3 The court found
probable cause to set the conditions requested by the State and, on its own
accord, added the condition that Toombs wear a drug-monitoring patch. The
court noted that Toombs had a history of DUI violations4 and a “substantial risk to
community safety” existed. The court reasoned that the “drug patch is a lesser
restrictive alternative to taking [Toombs] into custody and setting a higher bail.”
2 Bailey-Cobb’s criminal history included 32 adult misdemeanor convictions, three felonies, and a deferred prosecution for DUI.
3 Standard DUI conditions include, among others, not driving without a
valid license, not driving without insurance, and not driving within 24 hours of consuming alcohol or impairing drugs.
4 Toombs’s criminal history included four DUI violations.
3
No. 87585-0-I(consol. with No. 87738-1-I)/4
The court held a review hearing in August, where Toombs objected to the
drug-monitoring patch. Toombs contended the drug-monitoring patch was not a
“mandatory condition.” The court disagreed, noting “[m]onitoring is required
under the statute because this is a substance DUI and . . . [i]t’s for the safety of
our community for someone who is going to continue driving.”
Toombs petitioned the court for a writ of habeas corpus, contending the
drug-monitoring patch violated his right to privacy. The court denied Toombs’s
petition. While the court concluded the patch constituted a search, it noted the
drug-monitoring patch was “not as intrusive as other methods of pre-trial drug
monitoring such as urinalysis,” and lawful authority (RCW 10.21.045 and
CrRLJ 3.2) supported the imposition of the patch. Toombs appealed.5
ANALYSIS
Standard of Review
We review constitutional issues and a court’s decision to deny a writ of
statutory review de novo. Blomstrom v. Tripp, 189 Wn.2d 379, 389, 402 P.3d
831 (2017).
Balancing Test and Special Needs
The State contends RCW 10.21.045 and CrRLJ 3.2 are constitutional
authorities of law that support the use of a drug-monitoring patch under a
compelling interest balancing test and the special needs exception. We disagree
5 Bailey-Cobb’s and Toombs’s petitions were consolidated for review.
4
No. 87585-0-I(consol. with No. 87738-1-I)/5
and find that neither the compelling interest test nor the special needs exception
are applicable.
Both the United States Constitution and the Washington State Constitution
protect individuals against unreasonable searches and seizures. U.S. CONST.
amend. IV; WASH. CONST. art. I, § 7. In some contexts, article I, section 7
provides broader protection than the Fourth Amendment, including the protection
of an individual’s private affairs. WASH. CONST. art. I, § 7 (“No person shall be
disturbed in his private affairs, or his home invaded, without authority of law.”)
When a party challenges an action, contending it violates article I,
section 7, the court conducts a two-part inquiry. First, we must determine
whether the alleged action “intruded upon a person’s ‘private affairs.’ ” State v.
McKinney, 148 Wn.2d 20, 27, 60 P.3d 46 (2002). To determine whether a
privacy interest exists, we “examine whether a particular expectation of privacy is
one that a citizen of this state should be entitled to hold.” State v. Reeder, 184
Wn.2d 805, 814, 365 P.3d 1243 (2015). Individuals charged but not yet
convicted are presumed innocent and do not have a reduced expectation of
privacy. Blomstrom, 189 Wn.2d at 409-10.
Washington courts “have consistently held that the nonconsensual
removal of bodily fluids implicates privacy interests” and constitutes a search
under article I, section 7. State v. Olsen, 189 Wn.2d 118, 124, 399 P.3d 1141
(2017) (urinalysis); see also State v. Garcia-Salgado, 170 Wn.2d 176, 184, 240
P.3d 153 (2010) (cheek swab), State v. Curran, 116 Wn.2d 174, 184, 804 P.2d
5
No. 87585-0-I(consol. with No. 87738-1-I)/6
558 (1991), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947
P.2d 700 (1997) (blood test).
If a privacy interest exists, the next question is whether relevant authority
of law justifies the disturbance. State v. Surge, 160 Wn.2d 65, 74, 156 P.3d 208
(2007). “ ‘Authority of law’ may be satisfied by a valid warrant, a recognized
exception to the warrant requirement, a constitutional statute, or a court rule.”
Blomstrom, 189 Wn.2d at 404.
Here, the State concedes implementing a drug-monitoring patch violates
appellants’ right to privacy under article I, section 7, so the only question at issue
is whether the disturbance is supported by authority of law. The State does not
assert a valid warrant or a recognized exception to the warrant requirement
exists; instead, it contends two sources provide authority of law for implementing
a drug-monitoring patch: RCW 10.21.045 and CrRLJ 3.2.
RCW 10.21.045 provides that
[a] judicial officer in a municipal, district, or superior court imposing
conditions of pretrial release for a defendant accused of a
misdemeanor, gross misdemeanor, or felony offense, may prohibit
the defendant from possessing or consuming any intoxicating
liquors or drugs not prescribed to the defendant, and require the
defendant to submit to testing to determine the defendant's
compliance with this condition, when the judicial officer determines
that such condition is necessary to protect the public from harm.
Similarly, CrRLJ 3.2 governs conditions of pretrial release for those accused of
committing a misdemeanor offense. Under CrRLJ 3.2, the court will release an
individual on their personal recognizance pending trial unless:
(1) the court determines that such recognizance will not
reasonably assure the accused's appearance, when required, or
6
No. 87585-0-I(consol. with No. 87738-1-I)/7
(2) there is shown a likely danger that the accused:
(i) will commit a violent crime, or
(ii) will seek to intimidate or threaten a witness, victim, or
court employee, or tamper with evidence or violate a civil or
criminal protection order, criminal no contact order, or family law
restraining order, and/or conditions of release that protect the
safety of alleged victims, witnesses, and the community.
CrRLJ 3.2 also provides courts the ability to impose conditions on the
accused if the court determines “there exists a substantial danger that the
accused will commit a violent crime or that the accused will seek to intimidate
witnesses, or otherwise interfere with the administration of justice.” Former
CrRLJ 3.2(d) (2024). The conditions include prohibiting the accused from
“consuming any intoxicating liquors or drugs not prescribed to the accused” and
“any condition other than detention to assure noninterference with the
administration of justice[] and reduce danger to others or the community.”
Former CrRLJ 3.2(d). To determine which conditions are reasonable, the court
shall consider, among others, the accused’s criminal record, the nature of the
charge, and the accused’s past interference with the administration of justice.
CrRLJ 3.2(e)(1)-(8).
While CrRLJ 3.2(d) allows the court to prohibit the accused from
“consuming any intoxicating liquors or drugs” and to “impose any condition other
than detention to assure noninterference with the administration of justice,” the
rule is not without limits. “The court may not impose onerous or unconstitutional
provisions where lesser conditions are available. . . . To do so is an abuse of
discretion." Butler v. Kato, 137 Wn. App. 515, 524, 154 P.3d 259 (2007).
7
No. 87585-0-I(consol. with No. 87738-1-I)/8
1. Balancing Test
First, the State contends RCW 10.21.045 and CrRLJ 3.2 are constitutional
under a compelling interest/narrow tailoring balancing test. When a warrantless,
suspicionless search is conducted, the search may pass constitutional muster if
the State acts with a narrowly tailored, compelling interest. Robinson v. City of
Seattle, 102 Wn. App. 795, 817, 10 P.3d 452 (2000). A compelling interest exists
where “the government’s interest is sufficiently important (i.e., a ‘relatively high
degree of government concern’) to justify the particular invasion of the
constitutional right in question.” Robinson, 102 Wn. App. at 817 (quoting
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 661, 115 S. Ct. 2386, 132 L. Ed.
2d 564 (1995)). A condition is narrowly tailored “ ‘when the State has selected
the less drastic means for effectuating its objectives.’ ” State v. Evans, 5 Wn.3d
199, 218, 572 P.3d 1172 (2025) (internal quotation marks omitted) (quoting
Blomstrom, 189 Wn.2d at 404 n.22).
First, we find the State’s argument that the drug patch is narrowly tailored
to achieve a compelling interest unsupported by precedent because the
Washington State Supreme Court has declined to apply such a balancing test to
pretrial releasees. In Blomstrom, the Court noted applying the balancing test in
previous cases was appropriate because the search was conducted on
probationers, who have a “ ‘significantly reduced expectation of privacy.’ ” 189
Wn.2d at 408 (quoting Olsen, 189 Wn.2d at 128). The Court declined to apply
the test to determine if urinalysis testing of pretrial releasees was constitutional.
8
No. 87585-0-I(consol. with No. 87738-1-I)/9
Blomstrom, 189 Wn.2d at 410. More recently, in Evans, the Supreme Court
affirmed that it had not applied the balancing test to “defendants charged but not
yet convicted.” 5 Wn.3d at 216.6 Here, Bailey-Cobb and Toombs have not been
convicted, and they do not have a reduced expectation of privacy. Accordingly,
precedence does not support the State’s application of the balancing test to
justify a warrantless search. But, even if we were to apply the balancing test to
Bailey-Cobb and Toombs, the drug-monitoring patch is not narrowly tailored to
effectuate the State’s interest of public safety.
“Public safety is clearly a compelling interest that justifies intrusion on the
autonomy branch of privacy under article I, section 7.” Robinson, 102 Wn. App.
at 823. In Olsen, the Supreme Court noted the substantial public safety risk that
intoxicated drivers pose: “fatalities in crashes involving alcohol-impaired drivers
continue to represent almost one-third (31 percent) of the total motor vehicle
fatalities in the United States.” 189 Wn.2d at 129. But even when a compelling
interest exists, the means to effectuate that goal must be narrowly tailored.
Olsen, 189 Wn.2d at 130. In Olsen, the court held random urinalysis testing of
DUI probationers did not implicate privacy interests because the testing was
“narrowly tailored and imposed to monitor compliance with a valid probation
6 Despite making this determination, the court still applied the Olsen balancing test to determine whether pretrial releasees could be subjected to the administrative booking process. Evans, 5 Wn.3d at 217. Emphasizing that pretrial releasees “do not suffer any ‘diminution of their privacy rights,’ ” the Evans Court held the administrative booking process for pretrial releasees was not narrowly tailored and did not survive the Olsen balancing test. 5 Wn.3d at 213 (quoting State v. Winterstein, 167 Wn.2d 620, 634, 220 P.3d 1226 (2009)).
9
No. 87585-0-I(consol. with No. 87738-1-I)/10
condition.” 189 Wn.2d at 135. Similarly, in State v. Nelson, the court held
urinalysis testing as a community custody condition was narrowly tailored
because “the testing [was] limited in scope and only allowed to check for
compliance, not as a fishing expedition.” 4 Wn.3d 482, 509, 565 P.3d 906
(2025).
Here, the State contends that even though Bailey-Cobb and Toombs have
not been convicted (like the individuals in Olsen and Nelson), the reasoning is
still applicable for imposing a drug-monitoring patch. But, in Olsen, the court
noted that, while urinalysis testing could potentially reveal a variety of private
facts about a person, the “judgment and sentence here explicitly authorizes
random [urinalysis] only to ‘ensure compliance with conditions regarding the
consumption of alcohol and controlled substances.’ ” 189 Wn.2d at 132-33
(quoting record). The court went on to state that probationers “should not
necessarily expect a broader-ranging intrusion[] that expose[s] large amounts of
private information completely unrelated to the underlying offense.” Olsen, 189
Wn.2d at 133. This is not the case for Bailey-Cobb and Toombs: Even before
submitting to the drug-monitoring patch, Bailey-Cobb and Toombs would have to
disclose a myriad of personal information, including social security number,
employment status, and medical records to the Triton Group, a third-party entity
that monitors the drug-monitoring patch program.
The State also maintains the drug-monitoring patch is less intrusive than
urinalysis testing. But, while Bailey-Cobb and Toombs would not need to submit
10
No. 87585-0-I(consol. with No. 87738-1-I)/11
a urine sample, they would be submitting far more personal information with the
patch than urinalysis testing. And once affixed to the body, the patch collects
and retains evidence of any and all drugs ingested, regardless of whether it is
prescribed or otherwise not prohibited, and the individual wearing the patch is
required to go into Triton’s office every 10 to14 days to get a new patch.
Additionally, the patch does not test for alcohol, which is one of the substances
the court order prohibited, so it is conceivable that further testing would be
required. The drug patch is also susceptible to outside environmental
contamination in limited situations.7
Because the drug-monitoring patch is invasive and would reveal far more
personal information than necessary, it is not narrowly tailored and cannot
survive the Olsen balancing test.
2. Special Needs
The State also contends it has a special need to monitor the drug use of
pretrial releasees via a drug-monitoring patch. The special needs exception
“permits an otherwise unlawful search ‘when special needs, beyond the normal
need for law enforcement, make the warrant and probable cause requirement
impractical.’ ” Blomstrom, 189 Wn.2d at 407 (internal quotation marks omitted)
(quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S. Ct. 3164, 97 L. Ed. 2d
709 (1987)). For a special need to exist, the State must show “(1) a purpose
7 Bailey-Cobb and Toombs cite to United States v. Snyder, 187 F. Supp. 2d 52, 60 (N.D.N.Y. 2002) to support this assertion. The case is attached as an exhibit to Bailey-Cobb’s writ of habeas corpus.
11
No. 87585-0-I(consol. with No. 87738-1-I)/12
outside of general law enforcement, (2) that this purpose makes obtaining a
warrant or probable cause impractical, and (3) that this purpose outweighs the
privacy interest infringed.” Blomstrom, 189 Wn.2d at 407.
Determining whether the special needs exception applies requires the
court to “ ‘undertake a context-specific inquiry, examining closely the competing
private and public interests advanced by the parties.’ ” Robinson, 102 Wn. App.
at 815 (quoting Chandler v. Miller, 520 U.S. 305, 314, 117 S. Ct. 1295, 137 L. Ed.
2d 513 (1997)). Even when an important government interest may be placed in
jeopardy if the State were required to have probable cause before conducting a
search, the State must show that interest outweighs an individual’s privacy
interest implicated by the search.
Here, the State maintains a special need exists because requiring a
warrant or probable cause “would jeopardize the State’s need to monitor the
defendants for the sake of public safety.” But our Supreme Court has repeatedly
declined to apply a special needs exception under article I, section 7. See, e.g.,
Evans, 5 Wn.3d at 215 (declining to adopt the federal special needs exception for
administrative searches of pretrial releasees); Blomstrom, 189 Wn.2d at 410
(declining to apply the special needs exception for urinalysis testing of pretrial
releasees). Like the balancing test, precedent does not support applying the
special needs exception to the imposition of a drug-monitoring patch for pretrial
releasees.
12
No. 87585-0-I(consol. with No. 87738-1-I)/13
But, even if we were to recognize a special needs exception under
article I, section 7, the requirements are not met here. The State contends it has
a special need to impose the drug-monitoring patch because requiring a warrant
or probable cause would jeopardize the State’s need to monitor Bailey-Cobb and
Toombs for the public’s safety. However, assuming the State can show that
requiring a warrant or probable cause is impractical to ensure compliance with
pretrial release conditions, it cannot show that its interest in protecting the
public’s safety outweighs Bailey-Cobb’s and Toombs’s privacy interests
implicated by the search. Bailey-Cobb and Toombs do not suffer a diminished
expectation of privacy, and the drug-monitoring patch is highly invasive and
would reveal personal information far beyond what is necessary to ensure
compliance with their pretrial release conditions. For these reasons, the State
cannot meet the requirements to impose the special needs exception.
We conclude that the balancing test and the special needs exception do
not apply to Bailey-Cobb or Toombs; therefore, the State cannot show
RCW 10.21.045 or CrRLJ 3.2 are constitutional authorities of law that support
use of a drug-monitoring patch as applied to the facts of this case.8
8 Bailey-Cobb and Toombs make several arguments for why
RCW 10.21.045 does not provide authority of law, including that it allows a court to impose conditions of release without a valid search warrant or an order meeting the warrant requirement, and it conflicts with CrRLJ 3.2. Because we conclude imposing a drug-monitoring patch is unconstitutional under any authority, we do not reach the issues of warrant requirements and conflicting court rules.
13
No. 87585-0-I(consol. with No. 87738-1-I)/14
CrRLJ 3.2(d)
Both Bailey-Cobb and Toombs contend the trial court exceeded its
authority when it imposed the drug-monitoring patch under CrRLJ 3.2 because
the court did not make the requisite findings to overcome the presumption of
release. Because we conclude CrRLJ 3.2 does not provide authority of law to
justify the imposition of a drug-monitoring patch, we do not reach this issue.
We reverse and remand for the court to amend Bailey-Cobb’s and
Toombs’s pretrial release orders to remove the drug-monitoring patch
requirement.
WE CONCUR:
14