Filed
Washington State
Court of Appeals
Division Two
August 15, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 56915-9-II
Respondent,
v.
MICHAEL ANGEL AMARO, UNPUBLISHED OPINION
Appellant.
LEE, J. — Michael A. Amaro appeals his convictions and sentence for two counts of first
degree possession of depictions of a minor engaged in sexually explicit conduct—suspect 18 years
or older. Amaro argues that the trial court erred by denying his motion to suppress, imposing three
community custody conditions, and imposing community custody supervision fees.
We hold that the trial court did not err by denying Amaro’s motion to suppress. We also
hold that the trial court did not err by imposing the challenged community custody condition
relating to sexually exploitive materials. However, the trial court erred by imposing the challenged
community custody conditions relating to sexually explicit materials and use of internet/social
media, but the remedy of striking the conditions is not necessary for both challenged community
custody conditions. Finally, the community custody supervision fees should stricken.
Accordingly, we affirm Amaro’s convictions and the community custody condition
prohibiting the possession or access to sexually exploitive materials. However, we remand for the
trial court to (1) provide proper definition and clarification for the community custody condition
prohibiting the possession or access to sexually explicit materials and/or information pertaining to
No. 56915-9-II
minors via computer and (2) modify and state the factual basis for the community custody
condition prohibiting the use of internet or social media without approval, and (3) strike the
community custody supervision fees.
FACTS
A. EVENTS AT PUGET SOUND NAVAL SHIPYARD
Amaro worked at the Puget Sound Naval Shipyard (PSNS). PSNS is a military
establishment that employs civilians and maintains classified military information related to
national defense.
PSNS prohibits camera capable cell phones and routinely performs security sweeps. When
entering PSNS, employees pass the following warning signs: (1) a sign stating that all devices with
cameras are prohibited and featuring photos of a cell phone, camera, and iPad with a red line
through them; (2) a sign stating that authorized personnel who enter the restricted area consent to
the search of personnel and property under their control; and (3) a sign stating that photography in
the industrial area is prohibited and violation of that policy is subject to criminal prosecution and/or
confiscation of film, media and camera.
PSNS has established procedures and protocols for when security finds camera capable
cell phones. PSNS policy states that PSNS will review any photographs that may contain classified
material, along with any transmission of classified materials via text messaging or other electronic
communication. If PSNS finds classified material on a camera capable cell phone, PSNS will
apply a higher level of scrutiny in its review of the cell phone.
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On September 16, 2021, security personnel entered Amaro’s work building and announced
they were conducting a security sweep. Security personnel saw Amaro frantically trying to put a
cell phone into his backpack. Security personnel asked Amaro to remove the cell phone from his
backpack and tell them if it was a camera capable cell phone. Amaro handed the cell phone to
security personnel and told them it was a camera capable cell phone.
One security employee, Jennifer Young, told Amaro she was taking custody of his cell
phone because it was a violation of PSNS policy to be in possession of a camera capable cell
phone. Amaro provided Young with the swipe pattern or password for accessing the phone.
Young wrote the swipe pattern or password on an evidence property receipt for storage and review
of the phone. Amaro then signed the evidence property custody receipt.
Young reviewed the contents of the cell phone for any contraband related to PSNS security.
Young found two photos of classified shipyard documents in the photo section of the phone, which
triggered a heightened degree of scrutiny for her review of the phone.
Young then reviewed the text messages on the phone and found a conversation that
appeared to be between Amaro and an 11-year-old girl that occurred on September 7, 2021. In the
text conversation, the girl said she was happy Amaro wanted to spend time with her even though
she is 11 years old. The girl also stated that she would not tell her mother that she and Amaro had
sex. Amaro responded in the conversation that he could not believe she was only 11 years old and
that he had a good time with her. The text conversation also included a photo of a nude female
from the rear who was bent over facing away from the camera. Young did not know the age of
the female in the photo.
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Young immediately notified her supervisor of the text conversation. PSNS transferred the
phone to the Naval Criminal Investigative Service, who then transferred the phone to Washington
State Patrol (WSP).
B. WSP SEARCH WARRANT
WSP Detective Sergeant Jason Greer applied for a search warrant for Amaro’s cell phone.
The warrant application stated that WSP had probable cause to believe that the cell phone
contained evidence of first degree rape of a child and communication with a minor for immoral
purposes. The warrant application included a description of the text conversation with the 11-
year-old girl, including the nude photo, that Young had found on the cell phone.
A judge granted the search warrant application. The warrant authorized WSP to search the
phone for evidence of first degree rape of a child and communication with a minor for immoral
purposes.
Detective Sergeant Greer searched Amaro’s cell phone pursuant to the warrant and located
the text messages with the 11-year-old girl. Detective Sergeant Greer also found dozens of images
of minors engaged in sexually explicit conduct, along with hundreds of similar images that had
been deleted.
C. CHARGES AND MOTION TO SUPPRESS
The State charged Amaro with three counts of first degree possession of depictions of a
minor engaged in sexually explicit conduct—suspect 18 years or older.
Amaro moved to suppress the evidence found on his cell phone, arguing that Young had
unlawfully searched his cell phone, the search warrant application did not establish probable cause
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for a search, and the search warrant did not specify with particularity the items to be searched. The
State opposed the motion, arguing that the PSNS search was lawful, that there was sufficient
probable cause for the warrant, and that the warrant was sufficiently particular.
The trial court heard argument and orally denied Amaro’s motion to suppress. Amaro
provided supplemental briefing and argument on the motion to suppress, and the trial court again
denied the motion. The trial court made the following relevant written ruling to support its denial
of Amaro’s motion to suppress:
That under the totality of the circumstances, defendant impliedly consented
to a search of his cellphone when he entered a level II restricted facility, passed
barbed-wire fencing, passed access-controlled points of entry, and passed multiple
warning signs that clearly stated that camera capable devices are prohibited, and
that authorized entry constituted consent to search of personnel and their property.
Clerk’s Papers (CP) at 122. The trial court also ruled that the warrant was properly authorized and
that Detective Sergeant Greer properly seized the contested evidence pursuant to the warrant.
D. STIPULATED TRIAL, VERDICT, AND SENTENCING
The State filed an amended information removing one of the three counts of first degree
possession of depictions of a minor engaged in sexually explicit conduct—suspect 18 years or
older and charging only two counts of first degree possession of depictions of a minor engaged in
sexually explicit conduct—suspect 18 years or older. Amaro declined a jury trial and elected a
stipulated trial to the bench.
The stipulated facts stated that WSP found dozens of images of minors engaged in sexually
explicit conduct on Amaro’s cell phone and the secure digital card inserted in the phone. WSP
also found hundreds of deleted images containing similar content. The stipulated facts described
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No. 56915-9-II
two specific images of minors engaged in sexually explicit conduct but did not provide details
about how the images ended up on Amaro’s cell phone. Based on these stipulated facts, the trial
court found Amaro guilty of both counts of first degree possession of depictions of a minor
engaged in sexually explicit conduct—suspect 18 years or older.
The trial court sentenced Amaro to 30 months of total confinement. The trial court also
ordered 36 months of community custody. In an appendix to the judgment and sentence, the trial
court ordered Amaro to comply with the following community custody conditions:
7. Possess/access no sexually exploitive materials (as defined by treatment
therapist or [community corrections officer (CCO)]
....
9. Possess/access no sexually explicit materials and/or information pertaining to
minors (under 16) via computer (i.e. internet)
....
12. Have no use of internet or Social Media without [sex offender treatment
provider (SOTP)] and CCO’s written approval.
CP at 163.
The transcript from the sentencing hearing does not show that the trial court inquired into
Amaro’s financial circumstances. The trial court orally stated that it would impose the “standard
financial obligations.” Verbatim Rep. of Proc. (May 9, 2022) at 94. On the judgment and sentence,
the trial court checked a box under the financial obligations section that “[a]fter an individualized
inquiry on the record, the Court finds that the Defendant has the current or future ability to pay
legal financial obligations; therefore the Court imposes [a $100.00 DNA (deoxyribonucleic acid)
collection fee].” CP at 150. The trial court did not impose any other discretionary legal financial
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obligations in this section. However, the trial court left two boilerplate provisions in place
requiring Amaro to “[p]ay DOC monthly supervision assessment” and “[p]ay supervision fees as
determined by the [DOC].” CP at 149, 163.
Amaro appeals.
ANALYSIS
A. MOTION TO SUPPRESS
Amaro argues that the trial court erred by denying his motion to suppress,1 contending that
the evidence on his cell phone was illegally obtained in violation of the Fourth Amendment to the
United States Constitution and article I, section 7 of the Washington Constitution. Specifically,
Amaro takes issue with portions of the warrant authorizing WSP to search his cell phone. We hold
that, under the facts of this case, the trial court did not err by denying Amaro’s motion to suppress
because Amaro had waived any and all privacy interests in his camera capable cell phone by taking
the cell phone into a restricted military facility; therefore, no warrant was required.
Under the Washington Constitution, “[n]o person shall be disturbed in his private affairs .
. . without authority of law.” WASH. CONST. art. I, § 7. “Article I, section 7 encompasses the
privacy expectations protected by the Fourth Amendment to the United States Constitution and, in
some cases, may provide greater protection than the Fourth Amendment because its protections
1
Amaro’s briefing does not frame the issue as the trial court erring by denying his motion to
suppress. However, the substance of Amaro’s arguments, along with Amaro’s assignments of
error to several conclusions of law in the denial of the motion to suppress, make clear that Amaro
is arguing that the trial court erred by denying his motion to suppress.
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No. 56915-9-II
are not confined to the subjective privacy expectations of citizens.” State v. Samalia, 186 Wn.2d
262, 268, 375 P.3d 1082 (2016).2
The “private affairs” protected by article I, section 7 are “‘those privacy interests which
citizens of this state have held, and should be entitled to hold, safe from governmental trespass
absent a warrant.’” State v. Hinton, 179 Wn.2d 862, 868, 319 P.3d 9 (2014) (quoting State v.
Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). Cell phones and the data they contain are
private affairs under article I, section 7. Samalia, 186 Wn.2d at 272.
A person may lose a constitutionally protected privacy interest. Id. at 273. For example,
a person loses their privacy interest in their cell phone when they voluntarily abandon the cell
phone. See id. at 276 (defendant voluntarily abandoned cell phone when defendant left cell phone
behind in stolen vehicle to elude police). Additionally, a person can waive their privacy interest
by voluntarily exposing an item to the public or voluntarily disclosing information to a stranger.
Hinton, 179 Wn.2d at 875. In such situations, no warrant is required for the government to conduct
a search of the item. See Samalia, 186 Wn.2d at 272-73, 279.
Here, Amaro agreed to work at PSNS, which prohibits camera capable cell phones in the
restricted areas, and PSNS has a policy of reviewing any camera capable cell phones that security
finds in the restricted areas, with extra scrutiny if security finds classified material on the cell
phone. When entering PSNS, Amaro passed several signs warning him that camera capable cell
2
Amaro mentions the Fourth Amendment but makes no Fourth Amendment argument separate
from his article I, section 7 challenge. We do not reach any Fourth Amendment argument because
we resolve the issue by applying article I, section 7’s more protective standards. See Samalia, 186
Wn.2d at 270 n.2 (we need not address Fourth Amendment arguments where article I, section 7
provides independent and adequate state grounds to resolve an issue).
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No. 56915-9-II
phones are prohibited; Amaro entered an area that was clearly marked as any entry constituted a
consent to the search of his person and property; and the area Amaro entered clearly warned that
photography of the restricted industrial area could result in confiscation of his film, media, and
camera. Despite these policies and warning signs, Amaro brought a camera capable cell phone
into the restricted premises, apparently took photos of classified documents, then got caught trying
to put his cell phone back into his backpack during a security sweep. Amaro admitted that his cell
phone was camera capable, handed the cell phone to security personnel, provided security
personnel with the swipe pattern or password for accessing the phone, then signed the evidence
property custody receipt for storage and review of the cell phone where the swipe pattern or
password to access the cell phone was documented. Also, Amaro does not challenge the trial
court’s conclusion
[t]hat under the totality of the circumstances, defendant impliedly consented
to a search of his cellphone when he entered a level II restricted facility, passed
barbed-wire fencing, passed access-controlled points of entry, and passed multiple
warning signs that clearly stated that camera capable devices are prohibited, and
that authorized entry constituted consent to search of personnel and their property.
CP at 122.
Under the unique facts of this case, no warrant was required because Amaro, by his
conduct, had waived any privacy interest he had in the contents of the cell phone; thus, no warrant
was necessary. Because the warrant was unnecessary, Amaro’s challenges to the warrant fail.3
3
The State also argues that no warrant was required because the silver platter doctrine applies.
Because we affirm on other grounds, we decline to address this argument.
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B. COMMUNITY CUSTODY CONDITIONS
Amaro argues that the trial court erred by imposing three community custody conditions.4
We hold that the trial court erred by imposing two of the three challenged community custody
conditions.
We review a trial court’s statutory authority to impose community custody conditions de
novo. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). “Any condition imposed
in excess of [the court’s] statutory grant of power is void.” State v. Johnson, 180 Wn. App. 318,
325, 327 P.3d 704 (2014). If the trial court acted within its statutory authority, we review the
community custody conditions for an abuse of discretion. Id. at 326. We reverse such community
custody conditions if the conditions are manifestly unreasonable. State v. Hai Minh Nguyen, 191
Wn.2d 671, 678, 425 P.3d 847 (2018). Unconstitutional conditions are manifestly unreasonable.
Id.
Trial courts are authorized by statute to order offenders to comply with crime-related
prohibitions. RCW 9.94A.703(3)(f). A crime-related prohibition is one that is related to the
circumstances of the crime for which the offender is sentenced. RCW 9.94A.030(10). “The
prohibited conduct need not be identical to the crime of conviction, but there must be ‘some basis
for the connection.’” Nguyen, 191 Wn.2d at 684 (quoting State v. Irwin, 191 Wn. App. 644, 657,
364 P.3d 830 (2015)).
4
Amaro challenges these community custody conditions for the first time on appeal. Generally,
we may refuse to review any claim that was not raised below. See RAP 2.5(a). However, a
defendant may challenge an illegal or erroneous sentence, including community custody
conditions, for the first time on appeal. State v. Bahl, 164 Wn.2d 739, 744-45, 193 P.3d 678
(2008). Therefore, we address Amaro’s challenges to his community custody conditions.
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A community custody condition is unconstitutionally vague if it (1) does not give an
ordinary person sufficient notice to understand what conduct is proscribed or (2) “‘does not
provide ascertainable standards of guilt to protect against arbitrary enforcement.’” Id. at 678-79
(quoting State v. Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008)). Disputed terms are considered
in context, and if persons of ordinary intelligence can understand what is prohibited,
notwithstanding some possible disagreement, the condition is constitutionally sufficient. Id. at
679.
“However, a stricter standard of definiteness applies where the community custody
condition prohibits material protected by the First Amendment.” Id. Additionally, community
custody conditions that impinge on free speech rights must be “sensitively imposed in a manner
that is ‘reasonably necessary to accomplish essential state needs and public order.’” State v.
Johnson, 4 Wn. App. 2d 352, 358, 421 P.3d 969 (internal quotation marks omitted) (quoting Bahl,
164 Wn.2d at 757-58), review denied, 192 Wn.2d 1003 (2018).
1. Sexually Exploitive Materials as Defined by Treatment Therapist or CCO
Amaro argues that the trial court erred by ordering Amaro to “[p]ossess/access no sexually
exploitive materials (as defined by treatment therapist or CCO).” CP at 163. Specifically, Amaro
contends that the condition is unconstitutionally vague, allowing the CCO to define “sexually
exploitative materials” invites arbitrary enforcement, and the condition violates Amaro’s First
Amendment rights.
Amaro’s challenge rests on the assertion that the condition is not defined in the judgment
and sentence and there is no statutory definition upon which Amaro can rely. There are two
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statutes that, together, provide a sufficient definition for “sexually exploitive materials.” The first
statute provides that a person is guilty of sexual exploitation of a minor if they compel a minor to
engage in sexually explicit conduct knowing that the conduct will be photographed or part of a
live performance; or if they aid, invite, employ, authorize, or cause a minor to engage in sexually
explicit conduct, knowing that such conduct will be photographed or part of a live performance.
RCW 9.68A.040(1)(a), (b). The second statute defines “sexually explicit conduct” as actual or
simulated:
(a) Sexual intercourse, including genital-genital, oral-genital, anal-genital,
or oral-anal, whether between persons of the same or opposite sex or between
humans and animals;
(b) Penetration of the vagina or rectum by any object;
(c) Masturbation;
(d) Sadomasochistic abuse;
(e) Defecation or urination for the purpose of sexual stimulation of the
viewer;
(f) Depiction of the genitals or unclothed pubic or rectal areas of any minor,
or the unclothed breast of a female minor, for the purpose of sexual stimulation of
the viewer . . .; and
(g) Touching of a person’s clothed or unclothed genitals, pubic area,
buttocks, or breast area for the purpose of sexual stimulation of the viewer.
RCW 9.68A.011(4).
Amaro contends that he is unable to rely on these statutory definitions because the plain
language of the community custody condition does not use these definitions and instead allows the
term to be defined by Amaro’s CCO.5 We disagree.
5
The community custody condition also allows Amaro’s treatment therapist to define “sexually
exploitive materials,” but Amaro does not challenge the treatment therapist’s discretion.
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Together, the two statutes provide sufficient notice of what “sexually exploitive materials”
are prohibited and do not require persons of ordinary intelligence to guess at what is meant by the
condition prohibiting access to or possession of “sexually exploitive materials.” A term is not
unconstitutionally vague, even when undefined, when citizens may seek clarification through
statements of law in statutes and court rulings that are presumptively available to all citizens. City
of Spokane v. Douglass, 115 Wn.2d 171, 180, 795 P.2d 693 (1990).
Further, the definitions provided by the two statutes prevent arbitrary enforcement and
show that the condition was sensitively imposed and limited to restrictions reasonably necessary
for public order or safety. Therefore, we hold that the condition does not invite arbitrary
enforcement or violate Amaro’s First Amendment rights. Accordingly, we hold that the condition
ordering Amaro to “[p]ossess/access no sexually exploitive materials (as defined by treatment
therapist or CCO)” is not unconstitutionally vague. CP at 163.
2. Sexually Explicit Materials and/or Information Pertaining to Minors via Computer
Amaro argues that the trial court erred by ordering Amaro to “[p]ossess/access no sexually
explicit materials and/or information pertaining to minors (under 16) via computer (i.e. internet).”
CP at 163. Specifically, Amaro contends that the condition’s language relating to “sexually
explicit materials” is unconstitutionally overbroad and unrelated to Amaro’s crimes. 6 Amaro
separately contends that the condition’s language relating to “information pertaining to minors” is
6
Amaro does not argue that this part of the community custody condition is unconstitutionally
vague. Additionally, Amaro states in his reply brief that the State “is likely correct that the
prohibition against ‘sexually explicit materials’ is valid.” Reply Br. of Appellant at 13 n.6. It is
unclear if this statement is a concession and/or withdrawal of Amaro’s arguments related to
“sexually explicit materials.”
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unconstitutionally vague, overbroad, and not sufficiently related to Amaro’s crime. As discussed
below, to properly address Amaro’s argument regarding unconstitutional vagueness, the
community custody condition cannot be viewed piecemeal; rather, the text of the whole
community custody condition must be considered. Therefore, we consider the community custody
condition as a whole.
The full community custody condition orders Amaro to “[p]ossess/access no sexually
explicit materials and/or information pertaining to minors (under 16) via computer (i.e. internet).”
CP at 163. The condition’s plain language does not indicate whether the descriptor “sexually
explicit” applies only to “materials” or also to “information pertaining to minors.” Similarly, it is
unclear whether “pertaining to minors (under 16)” modifies “sexually explicit materials” or just
“information.” It is also unclear whether “via computer (i.e. internet)” applies to the whole
condition or only to “information pertaining to minors (under 16).”
The community custody condition as written could prohibit Amaro from
“possessing/accessing sexually explicit materials” and separately prohibit Amaro from
“possessing/accessing information pertaining to minors (under 16) via computer (i.e. internet).”
The condition could also prohibit Amaro from “possessing/accessing sexually explicit materials
pertaining to minors (under 16) via computer (i.e. internet)” and from “possessing/accessing
sexually explicit information pertaining to minors (under 16) via computer (i.e. internet).” Or the
condition could prohibit Amaro from “possessing/accessing sexually explicit materials via
computer (i.e. internet)” and from “possessing/accessing information pertaining to minors via
computer (i.e. internet).” It is anyone’s guess as to which interpretation is correct. Based solely
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on this ambiguity, this community custody condition does not provide notice to ordinary people
of what conduct is proscribed and is therefore unconstitutionally vague.
Additionally, there is no well-accepted definition for “information pertaining to minors,”
either in statutes or in the dictionary. The community custody condition as written could arguably
cover news related to birth rates, articles about teacher strikes, global positioning system directions
that happen to include school zones, or even individuals mentioning they are parents of children.
This condition does not provide notice to ordinary people of what conduct is proscribed, nor does
it provide ascertainable standards of guilt to protect against arbitrary enforcement. Therefore, we
hold that part of the condition ordering Amaro to “[p]ossess/access no . . . information pertaining
to minors (under 16) via computer (i.e. internet)” is unconstitutionally vague.
The proper remedy for an unconstitutionally vague condition is to remand to the trial court
for further definition of the term. State v. Padilla, 190 Wn.2d 672, 684, 416 P.3d 712 (2018).
Therefore, we reverse the condition and remand to the trial court for clarification and definition.
3. No Use of Internet/Social Media “Without SOTP and CCO’s Written Approval”
Amaro argues that the trial court erred by ordering Amaro to “[h]ave no use of internet or
Social Media without SOTP and CCO’s written approval.” CP at 163. Specifically, Amaro
contends that the condition is unconstitutionally overbroad and not related to Amaro’s crime. We
hold that the condition is unconstitutionally overbroad and that the record is insufficient for us to
determine whether the condition is crime related.
Community custody conditions that limit fundamental rights must be imposed sensitively
to avoid overbreadth. State v. Johnson, 197 Wn.2d 740, 744, 487 P.3d 893 (2021). Conditions
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that restrict internet access implicate both due process and the First Amendment. Id. “Judges may
restrict a convicted defendant’s access to the Internet, but those restrictions must be narrowly
tailored to the dangers posed by the specific defendant.” Id. at 745.
In Johnson, our Supreme Court considered a community custody condition prohibiting an
offender with internet-related child sex crime convictions from using or accessing the internet
unless specifically authorized by his CCO through approved filters. Id. at 744. The Johnson court
held that the condition was not overbroad because a proper filter would restrict the offender’s
ability to solicit children or commercial sexual activity. Id. at 745, 747. The Johnson court
reasoned that “[w]hile a blanket ban might well reduce his ability to improve himself, a properly
chosen filter should not.” Id. at 746. The Johnson court distinguished the community custody
condition from a community custody condition in another case that did not mention filters and
instead broadly prohibited the offender from using internet unless authorized by the offender’s
treatment provider and CCO. Id. at 745 n.1. The Johnson court acknowledged that Division One
of the Court of Appeals had previously held in an unpublished decision that such a condition is
unconstitutionally overbroad. Id. Our Supreme Court noted that the community custody condition
at issue in Johnson was “substantively different” due to its use of filters. Id.
Since Johnson, the Court of Appeals has held that community custody conditions
prohibiting internet use without authorization from the offender’s CCO are unconstitutionally
overbroad unless they incorporate use of a filter that is tailored to the offender’s risk to the
community. See State v. Geyer, 19 Wn. App. 2d 321, 330, 496 P.3d 322 (2021).
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Here, the community custody condition at issue broadly prohibits Amaro from using the
internet without written permission from his treatment provider and CCO. The community
custody condition makes no mention of filters. Thus, the community custody condition is
overbroad as written. Therefore, we remand to the trial court to modify this community custody
condition, and we note that the use of a filter tailored to Amaro’s risk to the community would be
a sufficiently narrow way to fulfill the State’s goals. See id. at 330, 332.
Additionally, courts may not prohibit an offender from using the internet if his crime lacks
a nexus to internet use. Johnson, 180 Wn. App. at 330. Here, the stipulated facts serving as the
basis for Amaro’s convictions state that he had images on his phone of minors engaged in sexually
explicit conduct. The stipulated facts do not provide details about the images’ sources or how they
came to be on Amaro’s phone. Therefore, on remand, the trial court should also state the factual
basis for the modified condition.
C. COMMUNITY CUSTODY SUPERVISION FEES
Amaro argues that the trial court erred by ordering Amaro to pay community custody
supervision fees. The State concedes that the community custody supervision fees were
improperly imposed. It is unclear from our record whether the trial court intended to impose
community custody supervision fees.
In such situations, we have previously remanded for the trial court to consider the
imposition of community custody supervision fees. See State v. Spaulding, 15 Wn. App. 2d 526,
537, 476 P.3d 205 (2020) (remanding for trial court to reevaluate imposition of supervision fees
where trial court’s intentions were unclear). However, the legislature recently amended RCW
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9.94A.703 and removed courts’ authority to impose community custody supervision fees. See
LAWS OF 2022, ch. 29 § 7. Although the amendment became effective on July 1, 2022, we hold
that the amendment applies here because Amaro’s case was still pending review on the effective
date. See State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d 714 (2018) (new statute applies if a
precipitating event occurs after the effective date of the statute). Thus, in light of the amendment
to RCW 9.94A.703, we remand for the trial court to strike the community custody supervision
fees.
CONCLUSION
We hold that the trial court did not err by denying Amaro’s motion to suppress. We also
hold that the trial court did not err by imposing the challenged community custody condition
related to “sexually exploitive materials.” However, the trial court erred by imposing the two other
challenged community custody conditions relating to sexually explicit materials and use of
internet/social media, but the remedy of striking the conditions is not necessary for both challenged
community custody conditions. Finally, the community custody supervision fees should be
stricken.
Accordingly, we affirm Amaro’s convictions and the community custody condition related
to “sexually exploitive materials.” We remand for the trial court to provide proper definition and
clarification for the community custody condition related to possessing or accessing “sexually
explicit materials and/or information pertaining to minors (under 16) via computer (i.e. internet),”
modify and state the factual basis for the community custody condition related to social
media/internet use, and strike the community custody supervision fees. CP at 163.
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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.
Lee, J.
We concur:
Cruser, A.C.J.
Price, J.
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