                                                                                            E - ILF-
                                                                                                  D
                                                                                    001:3 T OF APPEALS
                                                                                          DIVISI0M, 11

                                                                                  2013 DEC 31     AM 9: 15

                                                                                   STATE OF WASHINIGTO14

                                                                                   BY-        24T
                                                                                              FVJ




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

STATE OF WASHINGTON,


                                       Respondent,                             No. 42960 -8 -II


          V.                                                             UNPUBLISHED OPINION


RACHEL JANET RIDER,


                                       Appellant.




                                 1—
          MCCARTHY, J. P. T.            Rachel Rider appeals her conviction for unlawful possession of a


controlled substance.        She argues that ( 1) the trial court erred in denying her motion to suppress

the controlled substance found in her purse because the search was not justified by concerns for

officer   safety   or   destruction   of evidence, ( 2)   the trial court abused its discretion when it denied


her motion to exclude testimony that the arresting officer initially contacted her in response to a

shoplifting complaint, and ( 3) the trial court abused its discretion when it denied her motion to

stay her sentence pending appeal. Consistent with our Supreme Court' s recent decision in State

v.   Byrd, — Wn. 2d —, 310 P. 3d 793 ( 2013),             we hold that the search of Rider' s purse was lawful


because it was immediately associated with her person at the time of her arrest. We further hold

that Rider cannot show that the admission of the shoplifting testimony materially affected the



1 Judge John A. McCarthy is serving as judge pro tempore of the Court of Appeals, Division II,
under     CAR 21(   c).
No. 42960 -8 -II


outcome of her trial and that the trial court did not abuse its discretion when it denied her motion


to stay her sentence pending appeal. We affirm.
                                                        FACTS


         On February 5, 2011, a Chehalis police officer responded to a shoplifting complaint at a

Wal - art store. One of the store' s loss prevention employees informed the officer that Rider
    M

had placed several items in her purse while shopping at the store and that when Rider proceeded

to the cash register she did not pay for them.

         The officer contacted Rider in the Wal -Mart loss prevention office where store personnel

had detained her. She was seated on a bench and her purse was either in her lap or on a table

about an arm' s length from where she was seated. The officer arrested her and, while carrying

her purse, escorted her out of the store, seated her inside his patrol vehicle, and closed the door.

         The officer then searched Rider' s purse on the trunk of his patrol car and found four pills

later identified as diazepam inside a closed, over - -counter medication container. When asked
                                                   the

about the pills, Rider told the officer that theywere generic Valium and that she did not have a

prescription for the medication.


         The State charged Rider with unlawful possession of a controlled substance under RCW

69. 50. 4013. 2 Before trial, Rider moved to suppress the diazepam found in her purse. She argued


that   under   State   v.   Byrd, 162 Wn.    App.   612, 258 P. 3d 686 ( 2011), rev' d, 310 P. 3d 793, the


officer' s search of her purse was unlawful because the purse was not within her reach at the time



2
    RCW 69. 50. 4013( 1)         It is unlawful for any person to possess a controlled substance
                               provides, "

unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a
practitioner while acting in the course of his or her professional practice, or except as otherwise
 authorized by this chapter. Diazepam is a schedule IV controlled substance. RCW
 69. 50. 210( b)( 15).


                                                             2
No. 42960 -8 -I1


                                                                                                                       3
of   the   search;   therefore,   no officer   safety    or evidence preservation concerns   justified the   search.




The trial court denied the motion, ruling that the diazepam was discovered as the result of a valid

search incident to arrest. In explaining its ruling, the trial court concluded that the search

incident to arrest exception to the warrant requirement " is still recognized under the Washington

State Supreme Court' s        holding    in State   v.   Smith, 119 Wn.2d 675[, 678,, 83 5 P. 2d 103 9] ( 1992)"


and therefore the trial court declined to follow Byrd. Clerk' s Papers at 50.


            Before trial, Rider moved to prevent the State from presenting any evidence that she was

arrested or detained for theft. The trial court denied the motion. It ruled that the State could

introduce evidence that Rider was contacted for suspicion of theft but not evidence that she was


arrested for theft. At trial, the arresting officer testified that he contacted Rider at Wal -Mart

where she had been detained on suspicion of theft.


            The jury found Rider guilty of unlawful possession of a controlled substance and the trial

court sentenced her to 30 days' confinement. Rider moved to stay the imposition of her sentence

pending appeal because the trial court declined to follow Byrd, which at that time was on review

with our Supreme Court. The trial court denied the motion to stay and Rider appealed that ruling

and her convictions.


            Following oral argument, we stayed this case pending our Supreme Court' s decision in

Byrd. On October 10, 2013, our Supreme Court filed its opinion in Byrd in which it reversed


Division Three' s decision and held that no specifically articulated officer safety or evidence

preservation concerns were required to justify the search of Byrd' s purse because the search was




3 Rider also argued that the State did not have probable cause to arrest her, but she does not raise
this issue     on appeal..
No. 42960 -8 -II


part of a lawful search incident to arrest. 310 P. 3d at 796 -800. In light of this decision, we

review Rider' s appeal.


                                                        ANALYSIS


I.         SEARCH INCIDENT TO ARREST


          Rider argues that the search of her purse violated the Fourth Amendment to the United

States Constitution and article I, section 7 of the Washington State Constitution because the

officer' s search was not justified by concerns for officer safety or evidence preservation. We

hold that under our Supreme Court' s recent decision in Byrd, because Rider' s purse was


immediately associated with her person at the time of arrest, no specific showing of officer safety

or evidence preservation was required to justify the search and the pills were discovered as a

result of a lawful search incident to arrest. 310 P. 3d at 796 -800.

          We review a trial court' s findings of fact related to a suppression motion for substantial

evidence.      State   v.   Levy,   156 Wn.2d 709, 733, 132 P. 3d 1076 ( 2006).     Substantial evidence is


evidence sufficient to persuade a rational, fair -
                                                 minded person of the finding' s truth. Levy, 156

Wn.2d     at   733.    We review conclusions of law from an order on a suppression motion de novo.


Levy,    156 Wn. 2d at 733.         Rider assigns error to three of the trial court' s findings of fact but fails


to provide any argument or citations to the record in support of her claim that those findings

were not supported .by substantial evidence. Accordingly, we decline to address these

 assignments of error.         RAP 10. 3(   a)(   6); see also State v. Thomas; 150 Wn.2d 821, 874, 83 P. 3d


 970 ( 2004) ( absent supporting argument or citations to "
                                                          relevant authority, an assignment of error

 is   waived).   The unchallenged and improperly challenged findings are verities on appeal. State v.

 O' Neill, 148 Wn. 2d 564, 571, 62 P. 3d 489 ( 2003);           State v. Jacobson, 92 Wn. App. 958, 964 n. l,

 965 P. 2d 1140 ( 1998).
No. 42960 -8 -II



               The Fourth Amendment to the United States Constitution                      provides   that "[ t] he right of the


people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not          be   violated."     Article I, section 7 of the Washington Constitution provides


that "[   n] o person shall be disturbed in his private affairs, or his home invaded, without authority

of   law." Because "[          a] rticle I, section 7 is more protective of individual privacy than the Fourth

Amendment, ...            we   turn to   it first   when   both   provisions are at      issue."   Byrd, 310 P. 3d at 795.


 Under article I, section 7, a warrantless search is per se unreasonable unless the State proves

that   one of     the   few ` carefully drawn        and   jealously     guarded exceptions'       applies."    Byrd, 310 P. 3d


at 795 ( quoting State v. Ortega, 177 Wn.2d 116, 122, 297 P. 3d 57 ( 2013)).

               One such exception is a search incident to lawful arrest. Smith, 119 Wn.2d at 678.


 Washington law has long recognized the validity of searching a defendant and the property

immediately within his or her control without a warrant in the process of making an arrest."

State     v.   Ellison, 172 Wn.       App.   710, 719, 291 P. 3d 921 ( 2013) (           citing State v. Nordstrom, 7

Wash. 506, 509 - 10, 35 P. 382 ( 1893) (                defendant' s boots, socks, cap, and memo book were

properly taken          upon arrest),    affirmed sub nom., Nordstrom v. State of Washington, 164 U.S. 705,

17 S. Ct. 997, 41 L.Ed. 1183 ( 1896)), petition for review filed, No. 88397 -1 ( Wash. Feb. 8, 2013).


               Our Supreme Court recently reiterated this principle in Byrd. In that case, Byrd was

arrested for possession of stolen property after a police officer confirmed that the car in which

she was         riding had   stolen   license   plates.    Byrd, 310 P. 3d       at   795. At the time of arrest, Byrd satin


the    front     passenger seat of     the   car with   her   purse on     her   lap.   Byrd, 310 P. 3d   at   795. Before


removing Byrd from the car, the officer took the purse from her lap and placed it on the ground

nearby. Byrd, 310 P. 3d at 795. After securing Byrd in the patrol car, the officer searched the

purse and discovered methamphetamine in a sunglasses case. Byrd, 310 P. 3d at 795. Division

                                                                     5
No. 42960 -8 -II



Three of this court affirmed the trial court' s decision to grant Byrd' s suppression motion, holding

that because she was restrained at the time of the search, the search was not justified by concerns

for evidence preservation or officer safety. Byrd, 310 P. 3d at 795.

           Our Supreme Court reversed, holding that no evidence preservation or officer safety

justifications were required to search Byrd' s purse because it was immediately associated with

her person at the time of arrest. Byrd, 310 P. 3d at 799 -800. The court clarified that there are two


 analytically distinct" concepts under the search incident to arrest exception to the warrant

requirement. Byrd, 310 P. 3d at 796. The first requires that warrantless searches of the area


within the arrestee' s control be specifically justified by concerns for evidence preservation or

officer safety. Byrd, 310 P. 3d at 796 ( citing Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034,

23 L. Ed. 2d 685 ( 1969)); see also Arizona v. Gant, 556 U.S. 332, 343, 129 S. Ct. 1710, 173 L.


Ed. 2d 485 ( 2009) (         applying Chimel rationale to vehicle searches incident to an occupant' s

arrest);    State   v.   Patton, 167 Wn.2d 379, 394 -95, 219 P. 3d 651 ( 2009) ( adopting           Gant).

            Under the second concept, an officer may reasonably search the arrestee' s person

incident to lawful arrest without any further justification. Byrd, 310 P. 3d at 796 ( citing United

States     v.   Robinson, 414 U. S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 ( 1973)); see also State v.


Parker, 139 Wn.2d 486, 510, 987 P. 2d 73 ( 1999) ( noting                that Robinson applies to searches of the

arrestee' s person, whereas Chimel applies to the area within the arrestee' s immediate control).

This type        of search extends   to   personal                 immediately   associated "'   with the arrestee' s
                                                     property "`


person. Byrd, 310 P. 3d at 798 ( quoting United States v. Chadwick, 433 U. S. 1, 15, 97 S. Ct.

2476, 53 L. Ed. 2d 538 ( 1977),            overruled on other grounds by California v. Acevedo, 500 U.S.

 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 ( 1991)).




                                                             rei
No. 42960 -8 -II



           The Byrd     court noted           that "[     w]hether a search incident to arrest is governed by Chimel or

Robinson turns        on whether         the item          searched was an article of        the   arrestee' s person."   310 P. 3d


at 797. Personal property is an article of the arrestee' s person or immediately associated with the

arrestee' s person " if the arrestee has actual possession of it at the time of a lawful custodial

arrest."    Byrd, 310 P. 3d at 798. In cautioning that the rule does not extend to items merely

within     the   arrestee' s reach,          the   court    held that "[ s] earches of the arrestee' s person incident to


arrest extend only to articles ` in such immediate physical relation to the one arrested as to be in a
fair   sense a projection of         his      person. "'       Byrd, 310 P. 3d at 799 ( quoting U.S. v. Rabinowitz, 339

U. S. 56, 78, 70 S. Ct. 430, 94 L.Ed. 653 ( 1950) ( Frankfurter,                            J., dissenting)).

           The facts here render the officer' s search of Rider' s purse a search of the person under


Robinson, for which no specific articulation of officer safety or evidence preservation concerns

were required, rather than a search of the surrounding area under Chimel. The unchallenged

findings of fact state that Rider' s purse was either on her lap or on the table next to her at the

time she was arrested. Regardless of the purse' s exact location, this finding shows that it was

immediately associated with Rider' s person at the time of her arrest. If the purse was on her lap,
the facts here would be identical to Byrd and the outcome would be the same. But even if Rider

was not physically touching the purse, it was a personal item kept close to her person in a public
space such        that it   was "   in   a   fair   sense a projection of        h[ er]   person."    Byrd, 310 P. 3d at 799


                                                         78 ( Frankfurter, J.,                       Therefore, no specific
 quoting Rabinowitz, 339 U. S.                      at                           dissenting)).

showing of concerns for officer safety or evidence preservation was required to justify the search

because it was a search of the person incident to lawful arrest. Byrd, 310 P. 3d at 800.




                                                                         VA
No. 42960 -8 -II



Accordingly, we hold that the officer' s search of Rider' s purse was lawful under the Fourth
                                                            4
Amendment            and article        I,   section   7.


II.          ADMISSION OF SHOPLIFTING TESTIMONY


             Rider next argues that the trial court abused its discretion when it admitted evidence that


Rider had been detained for shoplifting without conducting an ER 404(b) analysis. We disagree.

             Under ER 404( b), "[ e] vidence of other crimes, wrongs, or acts is not admissible to prove


the   character of a person              in   order    to   show action     in conformity therewith." However, this


evidence may be admissible " for other purposes, such as proof of motive, opportunity, intent,

preparation, plan,             knowledge,        identity,      or absence of mistake or accident."         ER 404( b).    We


review the trial court' s decision to admit evidence under ER 404(b) for abuse of discretion. State

v. Fisher, 165 Wn.2d 727, 745, 202 P. 3d 937 ( 2009).

                 Before   a   trial   court admits evidence under               ER 404( b),   it must ( 1) find by a preponderance

of    the   evidence      that the      misconduct occurred, (            2) identify the purpose for admitting the evidence,

 3) determine the relevance of the evidence to prove an element of the crime, and ( 4) weigh the

probative value of              the    evidence against         its   prejudicial effect.     Fisher, 165 Wn.2d   at   745. " The


court' s balancing of the prejudicial nature of ER 404( b) evidence must take place on the record."

State       v.   Carleton, 82 Wn.            App.   680, 685, 919 P. 2d 128 ( 1996). However, when the record as a


whole allows us to decide the admissibility of evidence, a trial court' s failure to articulate the ER

404( b) balancing process on the record is not reversible error. State v. Gogolin, 45 Wn. App.

640, 645, 727 P. 2d 683 ( 1986).




4
    Because Rider does not argue that the search of the medication bottle inside her purse was
unlawful, we do not address the lawfulness of that portion of the search.
                                                                            8
No. 42960 -8 -II


        We review the erroneous admission of evidence under ER 404( b) under the

nonconstitutional harmless error standard. State v. Gresham, 173 Wn.2d 405, 433, 269 P. 3d 207

 2012). Under this      standard, an error                   within reasonable probabilities, had the
                                             is harmless if "`


error not occurred,    the   outcome of   the trial   would   have been materially   affected. "'   Gresham,


173 Wn.2d    at   433 ( internal   quotation marks omitted) (     quoting State v. Smith, 106 Wn.2d 772,

780, 725 P. 2d 951 ( 1986)).


        Assuming without deciding that the trial court abused its discretion in admitting

testimony that the arresting officer initially contacted Rider in response to a shoplifting

complaint, we hold that the error was harmless. The State charged Rider with unlawful


possession of a controlled substance and presented evidence that the arresting officer discovered

four diazepam pills in her purse. And Rider admitted that she obtained the pills from a friend

and that Rider did not have a prescription for them. In light of the State' s uncontroverted

evidence that Rider possessed the pills without a prescription, we hold that Rider has failed to

show how the outcome of the trial would have been materially affected had the shoplifting

testimony not been admitted, and her claim fails.

III.    RELIEF FROM SENTENCE PENDING APPEAL


        Finally, Rider argues that the trial court abused its discretion by refusing to stay her

sentence pending appeal because it " applied the wrong legal standard when it ignored Gant and

admitted   the [ V] alium    evidence."   Br. of Appellant at 16. But because we hold that the trial


court correctly declined to apply Gant and Chimel to the search at issue here and properly denied

Rider' s suppression motion, we hold that the trial court did not abuse its discretion when it

denied Rider' s motion to stay her sentence.



                                                          0
No. 42960 -8 -II




        We affirm Rider' s conviction.


        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.


                                                                                     I-
                                                         e
                                                                              G-'--
                                                                                 J/
                                                    MCCARTHY, J.P
We co cur:




VVORSWICK, C. J.




J   A    olv, J.




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