STATE v. ZIMMER (2008)

PART PUBLISHED OPINION

¶ 1 Amy S. Zimmer appeals two jury convictions and sentences for methamphetamine possession.   She argues that the trial court erred when it (1) denied her suppression motion, (2) denied her motion to sever the counts, and (3) imposed certain community custody conditions.   We reverse the community custody condition prohibiting possession of a cellular phone and a handheld electronic scheduling/data storage device.   We affirm Zimmer's convictions and community custody condition prohibiting drug paraphernalia possession.

FACTS

I. Methamphetamine PossessionA. First Arrest and Search

¶ 2 On May 7, 2005, Camus City Officer Douglas Slyter was on patrol when he saw a Toyota pickup truck parked in a no-parking zone at the closed gate of the Lacamas Park entrance.   Slyter contacted two people under the pickup truck, which appeared disabled, and asked them if they needed help.   Amy Zimmer replied that she was having mechanical problems with her truck, but she did not need assistance.   Slyter told Zimmer that she could not leave the vehicle in front of the park gate and asked Zimmer and Justin Taggert for their names, which they both provided.¹

¶ 3 Slyter returned to his patrol car, ran both names for warrants, and discovered that Taggert had a felony warrant from Hood River County, Oregon.   By this time, Zimmer and Taggert had gotten into the pickup truck, with Zimmer driving, and were backing out of the park entrance's driveway.   Slyter signaled Zimmer to stop the truck;  Zimmer complied.   Slyter asked Zimmer for identification, and Zimmer showed Slyter her driver's license.²

¶ 4 Slyter walked around the pickup truck to the passenger side and spoke with Taggert about whether he had been in Hood River County.   Another officer arrived on scene and took over Taggert's arrest from Slyter.   Slyter walked around to the driver's side of the pickup truck and told Zimmer that he was going to search the truck.   Zimmer declared that Slyter could not search her truck.   Slyter explained to Zimmer that he had a right to search her truck and told her that if she did not get out of the truck, he could arrest her for obstructing justice.   When Slyter initially tried to remove Zimmer from the truck, Zimmer refused and held on to the steering wheel.

¶ 5 When Zimmer continued to refuse to get out of the truck, Slyter and the other officer physically removed her and arrested her for obstructing justice.   The officers gave Zimmer her Miranda³ warnings.   When Slyter searched the pickup truck's passenger compartment, he found a purse that contained (1) two plastic bags, each containing methamphetamine;  (2) syringes;  and (3) Zimmer's bank card.   Zimmer admitted that the methamphetamine Slyter found in her purse was hers and that she had been smoking it.

B. Second Arrest and Search

¶ 6 On August 29, 2006, Camus City Detective Scott Boyles was on patrol when he observed a truck with a female occupant.   Boyles ran the truck's license plate number for its vehicle registration and discovered that the vehicle was registered to Zimmer.   The police department listed Zimmer as a person the police had probable cause to arrest;  so Boyles turned on his vehicle's lights and signaled Zimmer to pull over.   Zimmer used her driver's license to identify herself.

¶ 7 Telling Zimmer “that there was probable cause for arrest on a previous case and that she was under arrest,” ⁴ Boyle arrested Zimmer and read her the Miranda rights.   Boyle then searched the passenger compartment of her pickup truck and found (1) two plastic bags, each containing methamphetamine;  (2) four small amounts of marijuana;  (3) “a couple of pipes”;  and (4) a “bong.”   Zimmer told Boyle that she owned all of the items he had found in her truck.

II. Procedure

¶ 8 The State charged Zimmer with two counts of methamphetamine possession, alleging that count I occurred on May 7, 2005, and count II occurred on August 29, 2006.

A. Pretrial Motions

¶ 9 Zimmer moved to suppress all the evidence seized from her vehicle on May 7, 2005, arguing that Slyter had illegally seized her.   The trial court denied Zimmer's motion to suppress.   The trial court denied Zimmer's motion to sever her two counts of methamphetamine possession.

B. Trial

¶ 10 At trial, Officer Slyter and Detective Boyle testified about Zimmer's arrests, the truck searches, finding methamphetamine in Zimmer's truck, and her statements that the methamphetamine was hers.   Kathryn Dunn, a forensic scientist, testified that the substances seized from Zimmer's truck tested positive for methamphetamine.

¶ 11 Zimmer testified in her own defense that she did not know the methamphetamine was in her truck and that none of the methamphetamine was hers.   The jury found Zimmer guilty as charged.

C. Sentencing

¶ 12 The trial court imposed a standard range sentence of 12 months confinement, followed by nine months of community custody.   Along with other community custody conditions, the trial court ordered:

Defendant shall not possess or use any paraphernalia that can be used for the ingestion or processing of controlled substances or that can be used to facilitate the sale or transfer of controlled substances including scales, pagers, cellular phones, police scanners, and hand held electronic scheduling and data storage devices.

Clerk's Papers at 180.

¶ 13 Zimmer appeals.

ANALYSIS

I. Community Custody Conditions

¶ 14 Zimmer argues that the community custody condition prohibiting her from possessing drug paraphernalia is unconstitutionally vague.   She also challenges the condition prohibiting her from possessing a cellular phone and handheld electronic data devices.   The State counters that Zimmer's challenge to the community custody condition is not ripe for review and the condition is not unconstitutionally vague.   We agree with the State that the overall drug paraphernalia prohibition is not ripe for review.   Nevertheless, we hold that both the cellular phone and handheld electronic scheduling and data storage device prohibitions are crime-related prohibitions that the record does not support.

A. Issue Conflation

 ¶ 15 In Zimmer's brief and during oral argument on appeal, Zimmer's counsel conflated two distinct legal issues:  Counsel argued that (1) the trial court should not have prohibited Zimmer from possessing a cellular phone, and (2) the drug paraphernalia prohibition is unconstitutionally vague.   Zimmer conflated these two distinct legal arguments under one general assignment of error to her community custody provision and one general community custody section of her brief.

¶ 16 Whether the trial court could prohibit Zimmer from possessing a cellular phone is a challenge to whether the prohibition is crime-related, as required by statute.   See State v. Julian, 102 Wash.App. 296, 304-05, 9 P.3d 851 (2000), review denied, 143 Wash.2d 1003, 20 P.3d 944 (2001).   In contrast, whether the drug paraphernalia prohibition is vague and overly broad is a constitutional challenge.   See State v. Smith, 130 Wash.App. 721, 726-27, 123 P.3d 896 (2005), review denied, 157 Wash.2d 1026, 142 P.3d 609 (2006).   Distinguishing these two separate legal issues, with two separate legal grounds, we examine each in turn.

B. Crime-Related Prohibitions

 ¶ 17 Only the legislature may establish potential legal punishments.  State v. Pillatos, 159 Wash.2d 459, 469, 150 P.3d 1130 (2007).   Under RCW 9.94A.700(5)(e), the legislature has authorized the trial court to impose crime-related prohibitions.  “A ‘crime-related prohibition’ is an order prohibiting conduct that directly relates to the circumstances of the crime.”  State v. Autrey, 136 Wash.App. 460, 466, 150 P.3d 580 (2006) (emphasis added).

 ¶ 18 We review whether a community custody prohibition is crime-related for abuse of discretion.  Autrey, 136 Wash.App. at 466-67, 150 P.3d 580 (citing State v. Riley, 121 Wash.2d 22, 37, 846 P.2d 1365 (1993)).   We review the trial court's finding that the community custody prohibition is crime-related for substantial supporting evidence.  State v. Motter, 139 Wash.App. 797, 801, 162 P.3d 1190 (2007), review denied, 163 Wash.2d 1025, 185 P.3d 1194 (2008).

 ¶ 19 Although the trial court's prohibition on “conduct ․ during community custody must be directly related to the crime, it need not be causally related to the crime.”  State v. Letourneau, 100 Wash.App. 424, 432, 997 P.2d 436 (2000).   Because Zimmer possessed methamphetamine and drug paraphernalia, including syringes, pipes, and a bong, the trial court's prohibition on drug paraphernalia possession during community custody is directly related to her methamphetamine possession crimes.⁵

 ¶ 20 But the trial court's absolute prohibition of cellular phone and electronic data storage device possession does not directly relate to Zimmer's crimes.   After carefully reviewing the record, we find (1) no evidence in the record that the officers found any cellular phones or data storage devices in Zimmer's possession at the time of her arrests;  (2) no evidence in the record that Zimmer used a cellular phone or data storage device to facilitate her methamphetamine possession;  and (3) no finding by the trial court that the cellular phone and data storage device prohibition was related to her crimes.

¶ 21 We acknowledge that defendants may employ cellular phones or data storage devices to further their illegal drug possession, particularly if they intend to distribute or to sell the drug.   See State v. Campos, 100 Wash.App. 218, 224, 998 P.2d 893 (citing People v. Robinson, 167 Ill.2d 397, 408, 212 Ill.Dec. 675, 657 N.E.2d 1020 (1995)) (possession of police scanners, beepers, or cellular phones with large amounts of a controlled substance are factors that indicate intent to deliver), review denied, 142 Wash.2d 1006, 34 P.3d 1232 (2000).   We also note that cellular phones and data storage devices have become common place.   See Motter, 139 Wash.App. at 806-07, 162 P.3d 1190 (Van Deren, J. concurring in part and dissenting in part) (noting that, at that time, about 75 percent of Americans owned or used cellular phones).

¶ 22 But there is no evidence in the record that Zimmer possessed or used a cellular phone or data storage device in connection with possessing methamphetamine, and no evidence that she intended to distribute or sell methamphetamine using such devices.   Thus, on the record before us, the trial court's prohibition of these items is not crime-related.   Accordingly, we hold that the trial court abused its discretion when it prohibited Zimmer from possessing a cellular phone and handheld electronic data storage devices as conditions of community custody.⁶

C. Vagueness Challenge

 ¶ 23 We next turn to Zimmer's vagueness challenge to her community custody condition prohibiting drug paraphernalia possession.   Although Zimmer does not specify what type of challenge she is raising on appeal, courts have clearly established that there are two types of due process vagueness challenges to community custody conditions.   See State v. Halstien, 122 Wash.2d 109, 117, 857 P.2d 270 (1993);  Smith, 130 Wash.App. at 726-27, 123 P.3d 896.   A defendant may challenge a community custody prohibition for being facially vague or vague as applied.  Id. at 727, 123 P.3d 896.

 ¶ 24 When a community custody prohibition challenge “does not involve First Amendment rights, it must be evaluated as applied.”  Id. (citing City of Spokane v. Douglass, 115 Wash.2d 171, 182, 795 P.2d 693 (1990)).   Such is the case here.

1. Ripeness

 ¶ 25 But we cannot now evaluate Zimmer's community custody drug paraphernalia prohibition because the Department of Corrections (DOC) has yet to apply it.   We refuse to look at hypothetical situations on the periphery of a community custody condition.  “The unconstitutionality of a community custody condition is not ripe for review unless the person is harmfully affected by the part of the condition alleged to be unconstitutional.”  Autrey, 136 Wash.App. at 470-71, 150 P.3d 580.   Because Zimmer has “not been harmed by this potential for error[,] ․ this issue therefore is not ripe for our review.” Motter, 139 Wash.App. at 804, 162 P.3d 1190.⁷  Similarly, we hold here that Zimmer's challenge to the drug paraphernalia prohibition is not ripe for review.

2. Current community custody violation procedure

¶ 26 Nonetheless, Zimmer argues that we should review her community custody challenge, despite its lack of ripeness, because courts cannot review DOC community custody violation sanctions.   Zimmer misconstrues the sanction procedure, and her argument fails.

¶ 27 Zimmer cites Washington Administrative Code (WAC) 137-104-050 and WAC 137-104-080 to argue that the DOC handles community custody sanctions completely internally.   But, taken in context of RCW 9. 94A.634, these WACs do not support Zimmer's argument.   On the contrary, Washington courts routinely review DOC-imposed community custody sanctions.   See Smith, 130 Wash.App. at 724-28, 123 P.3d 896 (court reviewing community custody provision after DOC sanctioned defendant).   Rather than limiting a defendant's rights, this WAC gives a defendant further procedural rights,⁸ before the trial court hearing to which the statute entitles the defendant.

¶ 28 Under RCW 9.94A.634, there are two routes a defendant can choose when the DOC alleges a community custody violation:  First, the defendant may participate in a DOC hearing and decide whether to stipule to an agreement with the DOC about the violation and sanctions, if any.  RCW 9.94A.634(3)(a);  WAC 137-104-060.   Once the parties enter into a stipulated agreement, the DOC must, “[w]ithin seventy-two hours of signing the stipulated agreement,” submit a report to the trial court and the prosecuting attorney outlining the violation and proposed sanctions.  RCW 9.94A.634(3)(a)(ii).   The trial court reviews the DOC's report and proposed sanctions.   If it is not satisfied with the agreement or sanctions, the court may then schedule a hearing, modify the sanctions, and allow the defendant to withdraw from the stipulated agreement.   Id.

¶ 29 Second, the defendant may refuse to stipulate to the alleged community custody violation and the DOC's proposed sanction.  RCW 9.94A.634(3)(b).  Under WAC 137-104-050, the defendant is entitled to a DOC hearing on the alleged violation and proposed sanction, regardless of whether the defendant wants to stipulate to them.   After this DOC hearing, in the absence of a stipulated agreement between the parties, the trial court conducts a hearing at which the defendant must show cause why he or she should not be punished for noncompliance.  RCW 9.94A.634(3)(b).  The defendant may then appeal the trial court's ruling to the Washington appellate courts.

 ¶ 30 Thus, regardless of what route the defendant chooses, Washington courts review the DOC's proposed sanctions for a defendant's community custody violations.   Because we may later review the DOC's enforcement of community custody conditions, we decline to speculate about hypothetical situations where the DOC may only potentially apply the paraphernalia possession prohibition too broadly.   Accordingly, we hold that Zimmer's constitutional community custody challenge to the paraphernalia possession prohibition is not ripe for review.

¶ 31 We affirm the paraphernalia possession prohibition, and we reverse the community custody cellular phone and handheld electronic scheduling and data storage device prohibition.

¶ 32 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Motion to Suppress

¶ 33 Zimmer argues that the trial court erred in denying her motion to suppress because (1) Officer Slyter illegally seized her when he demanded and kept her driver's license without reasonable suspicion of criminal activity, and (2) the seizure led to the illegal search of her purse.   We disagree.

A. Standard of Review

¶ 34 Because Zimmer does not assign error to the trial court's findings of fact, its findings are verities on appeal.  State v. Moore, 161 Wash.2d 880, 884, 169 P.3d 469 (2007).   Whether the officer seized Zimmer is a mixed question of law and fact.  State v. Thorn, 129 Wash.2d 347, 351, 917 P.2d 108 (1996).   We review de novo the ultimate determinations of whether those facts constituted a seizure and whether the search was constitutional.   Moore, 161 Wash.2d at 885, 169 P.3d 469;  Thorn, 129 Wash.2d at 351, 917 P.2d 108.

B. Seizure, Arrest, and Search

¶ 35 The Washington Constitution mandates that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” 9  Wash. Const.. art.   I, § 7. Evidence that is the product of an unlawful search or seizure is not admissible.  State v. Thomas, 91 Wash.App. 195, 201, 955 P.2d 420 (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)), review denied, 136 Wash.2d 1030, 972 P.2d 467 (1998).

¶ 36 A warrantless search is per se unreasonable unless it falls within one of the few narrowly drawn exceptions.  State v. Parker, 139 Wash.2d 486, 496, 987 P.2d 73 (1999).   A search incident to arrest is an exception to the warrant requirement.  Moore, 161 Wash.2d at 885, 169 P.3d 469.   An arrest is lawful when there is “probable cause to support[ ] the arrest.”  Id. “Probable cause exists when the arresting officer has ‘knowledge of facts sufficient to cause a reasonable [officer] to believe that an offense has been committed’ at the time of the arrest.”  Id. (quoting State v. Potter, 156 Wash.2d 835, 840, 132 P.3d 1089 (2006)).

¶ 37 “Not every encounter between an officer and an individual amounts to a seizure.”  Thomas, 91 Wash.App. at 200, 955 P.2d 420.   Once an officer retains a suspect's identification or driver's license and takes it with him, the officer has seized the suspect.  Thomas, 91 Wash.App. at 200-01, 955 P.2d 420.   When an officer stops a vehicle, he has authority to order the driver to remain in or to exit the vehicle to ensure officer safety.   Parker, 139 Wash.2d at 495, 987 P.2d 73.   This bright-line rule does not extend to passengers unless the officer articulates an objective rationale to intrude further on the passengers' privacy interests.  Id. at 495-96, 987 P.2d 73.

¶ 38 When an officer arrests the driver or passenger of a vehicle, he may search the passenger compartment of the vehicle incident to the arrest.   Parker, 139 Wash.2d at 500, 987 P.2d 73;  State v. Stroud, 106 Wash.2d 144, 151-52, 720 P.2d 436 (1986);  State v. Cass, 62 Wash.App. 793, 797, 816 P.2d 57 (1991) (officer may search passenger compartment of vehicle incident to arrest regardless of whether it is the driver or passenger arrested), review denied, 118 Wash.2d 1012, 824 P.2d 491 (1992).   But when an officer arrests a vehicle's driver, the officer must have an independent basis to suspect a passenger before the officer may seize or search the passenger.  Parker, 139 Wash.2d at 498-99, 987 P.2d 73.   Furthermore, an officer may not search “readily recognizable personal effects” of a passenger when he is searching a vehicle based on the driver's arrest.  Id. at 498, 987 P.2d 73.

¶ 39 Here, we agree with Zimmer that (1) when Officer Slyter requested her driver's license, he did not have reasonable suspicion to seize her;  and (2) if Slyter kept her driver's license, he seized her within the meaning of Washington Constitution article I, section 7. See Thomas, 91 Wash.App. at 200-01, 955 P.2d 420.   But it is unclear from the record whether Slyter kept Zimmer's driver's license after requesting it.   Thus, we cannot determine, on this record, whether Slyter seized Zimmer when he requested her license.

¶ 40 But whether Slyter seized Zimmer at the time he requested her license does not determine whether the trial court should have suppressed the seized methamphetamine under the “fruit of the poisonous tree” doctrine. 10  Slyter had authority to search the passenger compartment of the truck incident to Taggert's arrest.  Parker, 139 Wash.2d at 500, 987 P.2d 73;  Stroud, 106 Wash.2d at 151-52, 720 P.2d 436;  Cass, 62 Wash.App. at 797, 816 P.2d 57.   He also had authority to order Zimmer out of the vehicle so that he could search it.   See Parker, 139 Wash.2d at 495, 987 P.2d 73 (officer has authority to order driver to remain in or exit vehicle to ensure officer safety).   Slyter's authority to conduct this search existed regardless of whether he requested and kept Zimmer's driver's license.

¶ 41 Ironically, if Zimmer had agreed to Slyter's request to search the passenger compartment of the truck and exited the truck as requested, Slyter could not have searched her purse.   See Id. at 498-99, 987 P.2d 73 (officer may not search readily recognizable personal items of non-arrested individuals in vehicle).   But because Zimmer did refuse to exit the truck, she was arrested for obstructing justice and Slyter's lawful search of Zimmer's purse was incident to her arrest.  Moore, 161 Wash.2d at 885, 169 P.3d 469.   Thus, Slyter's search of Zimmer's purse was directly related to her refusal to get out of the truck, the officers' forcible removal of her from the truck, and her arrest for obstructing justice.

¶ 42 Accordingly, we hold that the methamphetamine Slyter seized from Zimmer's purse was not causally related to the alleged seizure of her driver's license and, therefore, was not excludable under the fruit of the poisonous tree doctrine.   Accordingly, we affirm the trial court's denial of Zimmer's motion to suppress this evidence.

III. Motion to Sever Counts

¶ 43 Zimmer next argues that the trial court should have granted her motion to sever her two counts of methamphetamine possession.   The State counters that Zimmer has failed to show that her trial on both counts resulted in manifest prejudice that outweighed the concern for judicial economy.   We agree with the State.

A. Standard of Review

¶ 44 We review a trial court's refusal to sever counts under CrR 4.4(b) for an abuse of discretion.  State v. Cotten, 75 Wash.App. 669, 686, 879 P.2d 971 (1994), review denied, 126 Wash.2d 1004, 891 P.2d 38 (1995).   A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.  State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003) (citing State v. Blackwell, 120 Wash.2d 822, 830, 845 P.2d 1017 (1993)).   A defendant challenging the trial court's refusal to sever counts has the burden of demonstrating that the trial court abused its discretion.   Cotten, 75 Wash.App. at 686-87, 879 P.2d 971.   Zimmer does not meet this burden.

B. Refusal to Sever Counts

¶ 45 Under CrR 4.4(b), the trial court must grant a motion to sever counts if it determines “that severance will promote a fair determination of the defendant's guilt or innocence of each offense.”  “A defendant seeking severance has the burden of demonstrating that a trial of the counts together would be manifestly prejudicial such that it would outweigh any concern for judicial economy.”  Cotten, 75 Wash.App. at 686, 879 P.2d 971 (citing State v. Bythrow, 114 Wash.2d 713, 718, 790 P.2d 154 (1990)).

¶ 46 We apply four factors to determine whether a trial court's denial of a severance motion was unduly prejudicial:  (1) the strength of the State's evidence on each of the counts, (2) the clarity of the defenses on each count, (3) the propriety of the trial court's instruction to the jury regarding the consideration of evidence of each count separately, and (4) the admissibility of the evidence of the other crime.  Cotten, 75 Wash.App. at 687, 879 P.2d 971.   We examine each factor in turn.

1. Strength of evidence

¶ 47 Zimmer argues that the trial court should have severed her counts because the State's evidence on count II was not as strong as its evidence on count I. 11 We disagree.

¶ 48 Contrary to Zimmer's argument, the State presented strong evidence to support both counts of methamphetamine possession. For each count, officers found methamphetamine and drag paraphernalia in Zimmer's truck.   And after both the May 7 and August 29 arrests, Zimmer admitted to officers that the methamphetamine was hers.

2. Defenses on each count

¶ 49 Conceding that she had the same general denial defense for both counts, Zimmer argues that it affected the jury's evaluation of her defenses because the jury allegedly could not distinguish between them.   Her argument fails.

¶ 50 Rather than speculate about whether the jury could believe Zimmer's defenses, we consider whether a defense to one count affected Zimmer's defense to the other count.   See Cotten, 75 Wash.App. at 687, 879 P.2d 971 (refusal to sever counts was proper where defendant asserted identical defenses to both charges).   Because Zimmer defended against both counts of methamphetamine by denying possession, the joinder of the counts did not affect her ability to present clear defenses to the jury;  nor did her defenses contradict each other.

3. Jury instruction

¶ 51 Zimmer next argues that jury instruction two, on separate crimes, was deficient because it failed “to tell the jury that it could not use the evidence from one count when considering the other count.”   Br. of Appellant at 33.   Again, we disagree.

¶ 52 The trial court instructed the jury:

A separate crime is charged in each count.   You must decide each count separately.   Your verdict on one count should not control your verdict on any other count.

Clerk's Papers at 143.   A further review of the record shows that the trial court adequately instructed the jury about what evidence they could consider and what the State must prove for each count.   See Cotten, 75 Wash.App. at 688, 879 P.2d 971 (the trial court's instruction to the jury to consider each count separately was sufficient to eliminate any prejudice from trying the counts together).   Thus, Zimmer's argument fails because the record clearly shows that the trial court instructed the jury to consider each count separately.

4. Admissibility of evidence

¶ 53 Last, Zimmer argues that ER 404(b) prohibits using evidence of one count as evidence for the other count because its “sole purpose” would be improper evidence of her prior crimes as character evidence.   We disagree.

¶ 54 ER 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.   It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

At trial, Zimmer denied that the methamphetamine charged in both counts was hers.   She testified that she did not know the methamphetamine was in her truck for both counts.   Because Zimmer contended that she did not know about the methamphetamine in her truck and did not possess the methamphetamine for both counts, the evidence that she had methamphetamine in her truck and told officers both times that the methamphetamine was hers was admissible to show her knowledge of the methamphetamine and absence of mistake.  ER 404(b).

¶ 55 Thus, the State had strong evidence supporting both counts, Zimmer's defense of general denial did not differ for either count, the jury instruction adequately instructed the jury to consider the counts separately, and the evidence of each count was admissible to show knowledge and absence of mistake.   Accordingly, we hold that the trial court did not abuse its discretion in refusing to sever the counts.

¶ 56 We affirm Zimmer's convictions and community custody drug paraphernalia prohibition, but we reverse the community custody cellular phone and handheld electronic scheduling and data storage device prohibition.

FOOTNOTES

1.   Officer Slyter did not recognize either Zimmer or Taggert when he approached them, but he recognized Taggert's name from his prior criminal contacts with the Camus City Police Department.

2.   At the pretrial suppression hearing, Slyter testified that he did not remember whether he gave Zimmer her driver's license back or whether he kept it while he arrested Taggert.   The trial court did not make a finding of fact about whether Slyter kept Zimmer's driver's license after requesting to see identification.

3.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

4.   The record provides no further information about why the Camus City police department believed it had probable cause to arrest Zimmer.   Neither at trial, nor on appeal, does Zimmer challenge the probable cause for her second arrest.

5.   Forbidding a defendant from possessing drug paraphernalia, where the conviction was related to drugs or substance abuse, “is a ‘crime-related prohibition[ ]’ authorized under RCW 9.94A.700(5)(e).”   Motter, 139 Wash.App. at 804, 162 P.3d 1190.

6.   In so holding, we suggest that these prohibitions might be imposed given the appropriate factual circumstances.

7.   All three divisions of the Washington Court of Appeals have held that courts will not review a constitutional community custody provision challenge unless the provision harmfully affected the defendant.   Motter, 139 Wash.App. at 804, 162 P.3d 1190 (Div.Two);  Autrey, 136 Wash.App. at 470-71, 150 P.3d 580 (Div.Three);  State v. Massey, 81 Wash.App. 198, 200, 913 P.2d 424 (1996) (Div.One).

8.   In addition, under WAC 137-104-060, a defendant has the right at the DOC hearing to testify or to remain silent, to call witnesses, to cross-examine witnesses, and to have an audio recording copy of the hearing.   But WAC 137-104-060 does not strip a defendant of his or her right to have a court review DOC sanctions.

FN9.  We analyze Zimmer's challenge to her seizure, arrest, and subsequent search under the Washington Constitution because “[i]t is already well established that article I, section 7 of our state constitution provides to individuals broader protection against search and seizure than does the Fourth Amendment.”  State v. Parker, 139 Wash.2d 486, 493 n. 2, 987 P.2d 73 (1999)..  FN9.  We analyze Zimmer's challenge to her seizure, arrest, and subsequent search under the Washington Constitution because “[i]t is already well established that article I, section 7 of our state constitution provides to individuals broader protection against search and seizure than does the Fourth Amendment.”  State v. Parker, 139 Wash.2d 486, 493 n. 2, 987 P.2d 73 (1999).

FN10.  Under the “fruit of the poisonous tree” doctrine, “evidence will not be excluded as ‘fruit’ unless the illegality is at least the ‘but for’ cause of the discovery of the evidence.   Suppression is not justified unless ‘the challenged evidence is in some sense the product of illegal governmental activity.’ ”  Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (quoting United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980))..  FN10.  Under the “fruit of the poisonous tree” doctrine, “evidence will not be excluded as ‘fruit’ unless the illegality is at least the ‘but for’ cause of the discovery of the evidence.   Suppression is not justified unless ‘the challenged evidence is in some sense the product of illegal governmental activity.’ ”  Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (quoting United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980)).

FN11.  Although Zimmer argues that the strength of the evidence differed between the counts, she concedes that there was sufficient evidence for the jury to convict her on both counts..  FN11.  Although Zimmer argues that the strength of the evidence differed between the counts, she concedes that there was sufficient evidence for the jury to convict her on both counts.

HUNT, J.