¶20 (concurring in part and dissenting in part) — I respectfully dissent only on the issue of whether a prohibition on the possession or use of cellular phones and handheld electronic scheduling and data storage devices is shown to be related to Motter’s substance abuse and therefore whether they are appropriately banned and whether the issue is ripe.
Van Deren, J.¶21 Here, the record does not demonstrate that Motter dealt or possessed drugs with the intent to transfer or sell them. He does have an admitted drug use problem. The trial court’s order thus elevates ownership and use of cell phones and data storage devices by drug users to paraphernalia used in the street drug trade. While it has been demonstrated in numerous criminal prosecutions that drug dealers use cell phones and electronic scheduling and data storage devices in their trade, the largest users and possessors of these devices are non-drug-users. Indeed, recent statistics report that almost three-fourths of the American public own or use cell phones. 5 They are the sole telephone for approximately 26 million adults — some 11.8 percent of *807our households.6 The number of cell phone subscribers in Washington doubled from 2,144,767 in 2000, to 4,418,314 by June 2006.7 Their multiple functions allow them to replace other devices that take greater space and are much more costly.8 For those without a permanent address, they may be the only way for a community corrections officer to maintain regular, easy, and fast contact.
¶22 I disagree with the majority that Motter has not demonstrated immediate harm from the trial court’s restrictions and that the matter is not ripe. The majority states that “Motter claims that the court order could prohibit his possession of innocuous items” and reasons that “Motter has not been harmed by this potential for error and this issue is not ripe for our review.” Majority at 804. The majority partially relies on State v. Massey, 81 Wn. App. 198, 913 P.2d 424 (1996). In Massey, the defendant challenged a condition that he submit to searches upon reasonable suspicion versus reasonable cause. Massey, 81 Wn. App. at 199-200. The Massey court held that judicial review was premature until the defendant had actually been subjected to a search. Massey, 81 Wn. App. at 200. But Massey may never be subjected to a search, whereas Motter will be continuously subjected to the restriction on cell phones. Apparently the majority believes that in order to challenge these prohibitions, Motter must violate the order by possessing or using a cell phone or other device and face punishment before he can challenge the breadth of the order. But the order clearly is an immediate restriction on Motter’s ability to own (or even use another person’s) cell phones or electronic data storage devices.
*808¶23 I would hold that, unless the record shows that Motter was selling or obtaining drugs by use of a cell phone or other electronic device, this restriction is not valid and should he vacated.
Review denied at 163 Wn.2d 1025 (2008).
Fed. Commc’ns Comm’n (FCC), Annual Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile Services: Eleventh Report 123 (Sept. 26, 2006) (Statement of FCC Chairman Kevin J. Martin (“Approximately 28 million additional wireless subscribers signed up in 2005, bringing the total to 213 million subscribers and increasing the nationwide penetration rate to 71 percent.”)), available at http://wireless.fcc.gov/cmrsreports.html (last visited July 24, 2007).
Stephen J. Blumberg & Julian V. Luke, Nat’l Ctr. for Health Statistics, Wireless Substitution: Early Release of Estimates Based on Data from the National Health Interview Survey, July-December 2006, at 2 & tbl. 1 (May 14, 2007), available at http://www.cdc.gov/nchs/nhis.htm (last visited July 24, 2007).
Indus. Analysis & Tech. Div. Wireline Competition Bureau, Trends in Telephone Service 11-5 (February 2007), available at http://www.fcc.gov/wcb/iatd/trends.html (last visited July 24, 2007).
The recently released iPhone is an example of such a multifunction electronic device.