State v. Zimmer

190 P.3d 121
CourtCourt of Appeals of Washington
DecidedAugust 19, 2008
Docket36423-9-II
StatusPublished
Cited by18 cases

This text of 190 P.3d 121 (State v. Zimmer) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Zimmer, 190 P.3d 121 (Wash. Ct. App. 2008).

Opinion

190 P.3d 121 (2008)

STATE of Washington, Respondent,
v.
Amy Suzanne ZIMMER, Appellant.

No. 36423-9-II.

Court of Appeals of Washington, Division 2.

August 19, 2008.

*123 John A. Hays, Attorney at Law, Longview, WA, for Appellant.

John Peterson, Clark County Prosecuting Attorney's Office, Kimberly Robert Farr, Attorney at Law, Vancouver, WA, for Respondent.

PART PUBLISHED OPINION

HUNT, J.

¶ 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 POSSESSION

A. 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 *124 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 Miranda[3] 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.

*125 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).

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Bluebook (online)
190 P.3d 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-zimmer-washctapp-2008.