                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                         May 16, 2017

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                              No. 48831-1-II

                                Respondent,

           v.

 STEVEN WAYNE TOWER,                                         UNPUBLISHED OPINION

                                Appellant.

          MELNICK, J. — Steven Wayne Tower appeals his conviction for unlawful possession of a

controlled substance—methamphetamine. We conclude that the trial court did not err by denying

Tower’s motion to suppress because the initial stop of Tower and his search incident to arrest were

valid. We do not consider Tower’s pretextual stop argument because it is not preserved. We

affirm.

                                              FACTS

          On December 3, 2015, Lewis County Sheriff Deputy Richard VanWyck observed Tower

walking east along the side of a road, State Route 308, in the same direction as the traffic. The

road had two lanes and no sidewalks or shoulders.

          VanWyck contacted Tower for violating “Pedestrians on roadways,” RCW 46.61.250.

VanWyck pulled his car over and activated his lights. VanWyck asked Tower for his driver’s

license, but Tower did not have one. Tower told VanWyck his name. VanWyck told Tower he

needed to walk on the other side of the roadway, facing traffic. Tower crossed the road and
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continued walking. Meanwhile, VanWyck returned to his car, ran a warrant check, and learned

that Tower had an active arrest warrant.

       VanWyck then recontacted Tower and detained him while dispatch confirmed the warrant.

After dispatch confirmed the warrant, VanWyck arrested Tower and searched him incident to

arrest. VanWyck found a small baggie that had a powdery substance in the right front coin pocket

of Tower’s jeans. The substance field tested positive for methamphetamine.

       The State charged Tower with unlawful possession of a controlled substance—

methamphetamine.

       Tower moved to suppress the methamphetamine discovered by VanWyck because the

deputy seized the evidence pursuant to a warrantless search and seizure and without reasonable

suspicion.

       After a suppression hearing, the trial court denied Tower’s motion to suppress and entered

findings of fact and conclusions of law. The trial court concluded that the stop of Tower was valid

because he committed a traffic infraction, and the identification, detention, and arrest by VanWyck

were justified. The trial court also concluded that VanWyck’s discovery of methamphetamine

resulted from a valid search incident to arrest.

       After a trial, the jury found Tower guilty of unlawful possession of a controlled

substance— methamphetamine. Tower appeals.

                                            ANALYSIS

I.     MOTION TO SUPPRESS

       Tower argues that the trial court erred by denying his motion to suppress because

VanWyck’s initial stop was pretextual under State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833

(1999). Tower claims VanWyck violated his state and federal constitutional rights because the



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search and seizure were without lawful authority. Tower assigns error to finding of fact 1.5 and

all of the trial court’s conclusions of law. He argues that finding of fact 1.5 is not supported by

substantial evidence.

       We conclude that the trial court did not err by denying Tower’s motion to suppress because

the initial stop was lawful and thus, the subsequent arrest and search incident to arrest were lawful.

       A.      STANDARD OF REVIEW

       We review a trial court’s denial of a suppression motion in two parts. State v. Lohr, 164

Wn. App. 414, 418, 263 P.3d 1287 (2011). We first review whether the trial court’s findings of

fact are supported by substantial evidence and whether the findings support the court’s conclusions

of law. Lohr, 164 Wn. App. at 418. Substantial evidence is evidence sufficient to convince a

reasonable person of the truth of the trial court’s finding.         Lohr, 164 Wn. App. at 418.

Unchallenged findings of fact are verities on appeal. Lohr, 164 Wn. App. at 418. We defer to the

fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the

evidence. Lohr, 164 Wn. App. at 418. We review the trial court’s conclusions of law de novo.

Lohr, 164 Wn. App. at 418.

       B.      SUBSTANTIAL EVIDENCE SUPPORTS CHALLENGED FINDING OF FACT

       Tower challenges finding of fact 1.5 which stated, “Deputy VanWyck knew that it was

illegal for a person to be walking along the side of the road in the same direction as traffic.

According to Deputy VanWyck, a person is to walk along the side of the road facing traffic.”

Clerk’s Papers at 14.

       At the suppression hearing VanWyck testified that he contacted Tower to identify him and

to advise him he needed to walk on the other side of the road, facing traffic. We conclude that

substantial evidence supports this finding of fact.



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       C.      CONCLUSIONS OF LAW SUPPORTED BY FINDINGS OF FACT

       Next, we consider whether the challenged conclusions of law are supported by the findings

and whether the trial court erred by denying Tower’s motion to suppress.

               1.     Initial Stop

       Tower argues that VanWyck’s initial stop was unlawful because he did not commit a traffic

infraction and the stop was pretextual for running a warrant check. We disagree.

       First, we determine whether the trial court erred by concluding Tower committed a traffic

infraction. RCW 46.61.250(2) states:

                Where sidewalks are not provided any pedestrian walking or otherwise
       moving along and upon a highway shall, when practicable, walk or move only on
       the left side of the roadway or its shoulder facing traffic which may approach from
       the opposite direction and upon meeting an oncoming vehicle shall move clear of
       the roadway.

Pedestrian offenses are designated as traffic offenses. RCW 46.61.230. In addition, “Whenever

any person is stopped for a traffic infraction, the officer may detain that person for a reasonable

period of time necessary to identify the person, check for outstanding warrants, . . . and complete

and issue a notice of traffic infraction.” RCW 46.61.021(2)

       Tower cites to Stutz v. Moody, 3 Wn. App. 457, 459, 476 P.2d 548 (1970), to support his

argument that he did not commit a traffic offense by walking with the flow of traffic because he

was only required to do so when practicable. In Stutz, a boy was walking on the shoulder of a road

when Moody’s car struck him from behind. 3 Wn. App. at 458. The boy had been walking with

traffic and had his back to oncoming vehicles. Stutz, 3 Wn. App. at 458. In this civil case the

court concluded that the statute did not create a mandatory requirement that pedestrians always

walk on the shoulder facing oncoming traffic. Stutz, 3 Wn. App. at 459. The court reasoned that

the words “when practicable” referred to the existence of some “circumstances where it might be



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more dangerous to walk on the left side of the highway facing oncoming traffic.” Stutz, 3 Wn.

App. at 459. However, whether it was practicable for someone to walk on the side of the road

facing traffic is a question of fact for the trier of fact. Stutz, 3 Wn. App. at 459.

        Here, no evidence existed that it would be impracticable for Tower to have walked facing

the oncoming traffic. In fact, after VanWyck told Tower to walk on the other side of the road,

Tower proceeded to do so. Accordingly, we conclude that the trial court did not err by concluding

Tower committed an infraction. More precisely, we conclude that VanWyck had probable cause

to believe that Tower committed a traffic infraction,

        Second, conclusion of law 2.1 stated VanWyck conducted a valid stop of Tower. Tower

did not argue that the stop was pretextual before the trial court. A party generally waives the right

to appeal an error absent an objection before the trial court. RAP 2.5(a). A purpose of the rule is

to allow the trial court to correct any error called to its attention, thus avoiding needless appeals

and retrials. State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). In addition, the State may

have presented other evidence to counter an argument that the stop was pretexual and thus

unlawful. Accordingly, we do not consider whether the stop was pretextual because Tower did

not preserve the issue for appeal.

        We conclude that the trial court’s conclusion that the initial stop was lawful was supported

by its findings of fact. Consequently, the trial court did not err in denying Tower’s motion to

suppress.




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48831-1-II


                 2.      Search Incident to Arrest

          Tower argues that because the initial stop by VanWyck was unlawful, the search incident

to arrest was also unlawful. We disagree.

          As previously discussed, VanWyck lawfully stopped Tower. Therefore, we examine

whether the subsequent warrantless search was lawful. The trial court concluded that VanWyck’s

discovery of methamphetamine followed a lawful search incident to an arrest. A warrantless

search is per se unreasonable, unless it fits within one of the “‘jealously and carefully drawn

exceptions.’” State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996) (internal quotation

marks omitted) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). “These

exceptions include exigent circumstances, consent, searches incident to a valid arrest, inventory

searches, the plain view doctrine, and Terry[1] investigative stops.” York v. Wahkiakum Sch. Dist.

No. 200, 163 Wn.2d 297, 310, 178 P.3d 995 (2008) (internal quotation marks omitted). The State

bears the burden of showing that the search and seizure was supported by a warrant or an exception

to the warrant requirement. Hendrickson, 129 Wn.2d at 71. The fruits of an unconstitutional

search and seizure must be suppressed. Ladson, 138 Wn.2d at 359.

          Here, VanWyck discovered an arrest warrant for Tower. VanWyck arrested Tower

pursuant to that warrant. Then, incident to the arrest, VanWyck searched Tower. Searches

incident to an arrest are a recognized exception to the warrant requirement. Therefore, the trial

court’s conclusions of law are supported by and flow from the findings of fact. The court did not

err in denying the suppression motion.




1
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).


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       We affirm.

       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.




                                                         Melnick, J.

We concur:




       Johanson, P.J.




       Sutton, J.




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