                                                                                                                     FILED
                                                                                                               I OF APPEALS
                                                                                                              DIVISION II
                                                                                                     2OILi APR 29 AM 8 :"

                                                                                                                     AAJ         4GTGf
      IN THE COURT OF APPEALS OF THE STATE OF WASHI                                                         ri
                                                                                                                 i    LJT' t;'
                                                       DIVISION II

STATE OF WASHINGTON,                                                              No. 43945 -0 -II


                                         Respondent,


         v.



BRADLEY SCOTT FULTON,                                                    UNPUBLISHED OPINION


                                         Appellant.




         LEE, J. —        Bradley Scott Fulton appeals his possession of a controlled substance

conviction, arguing that the trial court erred in failing to suppress drug evidence found in his

satchel at     the time   of   his   arrest.    Because Fulton had actual possession of his satchel at the time


of the lawful custodial arrest, under State v. Byrd, 178 Wn.2d 611, 310 P. 3d 793 ( 2013) and State

v.   MacDicken, 179 Wn.2d 936, 319 P. 3d 31 ( 2014),               police were justified in searching the satchel

as an - extension of their - valid, -warrantless --search of Fulton' s- person incident to arrest. -


Accordingly, we affirm Fulton' s conviction.

                                                           FACTS •


          On January 23, 2012, O' Reilly Auto Parts employee James Vignati called 911 to report a

possible shoplifting incident at his Port Orchard store. Vignati described the suspected shoplifter

as a " male in his 20s wearing a black hoodie with white lettering and carrying a black satchel."

Suppl. Clerk' s Papers ( CP)             at    47.   Vignati further reported that he saw the young man walk

towards    a   nearby   Safeway        store.    Kitsap County Deputy   Sheriff   Greg   Rice   responded   to the    call
No. 43945 -0 -II



and    quickly "       located a male matching the description standing outside the nearby Safeway."

Suppl. CP at 47.


          Deputy Rice contacted the suspect who identified himself as Fulton. During the contact,

Rice   noticed        that Fulton       was   carrying   a "       large   combat style         knife approximately 12"    inches long

with a    5"    blade ... [     and a] handle that was shaped like brass knuckles with a sharp pointed end."

Suppl. CP        at   47.    Rice   arrested     Fulton for carrying the dangerous weapon.                          At the time of his


arrest,   Fulton had         a satchel with       him.     Fulton requested that Rice bring the satchel with him to

jail " because it had             all   his belongings in it."                  CP    at   5.     Concerned about transporting an

unsearched        bag    in his   patrol vehicle,        Rice        checked    the    satchel     for   weapons.   In an exterior side


pocket large enough to conceal a firearm, Rice found a small plastic baggie that appeared to

contain        illegal      narcotics;        later testing confirmed that the substance in the baggie was

methamphetamine. Rice then transported Fulton and his property to the jail.

           On February 21, 2012, the State charged Fulton with possession of a controlled substance
                                                               1
    methamphetamine],            RCW 69. 50. 4013.                   At his CrR 3. 6 hearing, Fulton argued that the drug

evidence should be suppressed because Deputy Rice' s search incident to arrest unlawfully

exceeded        the    allowable        scope of such a             search.     The State argued that the search incident to


arrest exception " allows a search of the arrestee' s person for evidence of the crime of arrest [ and]


allows for a search of the defendant' s person and the personal belongings closely associated with




1
     The record does not reflect whether the State charged Fulton with a dangerous weapon
violation,      RCW 9. 41. 250( 1)( b).            Rice testified at the CrR 3. 6 hearing that he did not find any
stolen items in Fulton' s bag.



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No. 43945 -0 -II




that person at the moment ofarrest for weapons, evidence, and anything that could be a potential

safety   risk      to the   officer."        Report of Proceedings ( Sept. 11, 2012) at 31 -32 ( emphasis added).


          The trial court ruled that the satchel search was valid and that the drug evidence would be

admissible at trial. Fulton' s stipulated facts bench trial occurred later that day, and the trial court

found him guilty of one count of possession of a controlled substance. Fulton appeals.

                                                                  ANALYSIS


          Fulton contends that the trial court erred in failing to suppress drug evidence found in his

satchel       at   the time       of   his   arrest.    Because our Supreme Court' s recent decisions in Byrd and


MacDicken squarely control the outcome of this case, we disagree.

          We review de novo a trial court' s conclusions of law on a motion to suppress evidence.

State    v.    Carneh, 153 Wn.2d 274, 281,                       103 P. 3d 743 ( 2004).              Unchallenged findings of fact

                                                                                                                  2
entered       following       a   suppression          hearing    are   treated     as    verities   on appeal.       State v. Hill, 123


Wn.2d 641, 644, 870 P. 2d 313 ( 1994).                           Here, as in our recent decision in State v. Ellison, 172


Wn.     App.       710, 719, 291 P. 3d 921 ( 2013), we must determine " whether the trial court erred in


ruling that police may conduct a warrantless search of an object, like a backpack, that was in a

defendant' s possession and control at the time of arrest as a valid search incident to arrest."




2
    All the factual findings in this               case are      treated   as verities.       Fulton has assigned error to the trial
court' s factual finding that " Deputy Rice testified he searched the bag for safety reasons [ and] it
is departmental policy and procedure to search every item and person before placing them in a
patrol    vehicle       for safety           reasons."     Suppl. CP           at   48.
                                                       However, Fulton has not adequately
supported this assignment of error with any argument or persuasive authority germane to the
issues addressed in this appeal. Accordingly, we do not further address this issue. State v.
Motherwell, 114 Wn.2d 353, 358 n. 3, 788 P. 2d 1066 ( 1990).




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No. 43945 -0 -II



        A warrantless search is per se unreasonable under article 1, section 7 of the Washington


Constitution " unless the State proves that one of the few `carefully drawn and jealously guarded

exceptions '        to the    warrant requirement applies.              Byrd, 178 Wn.2d at 616 ( quoting State v.
                                                                             3"
Ortega, 177 Wn.2d 116, 122, 297 P. 3d 57 ( 2013)).                                There are two types of warrantless

searches that may be made incident to a lawful arrest: a search of the arrestee' s person and a

search of     the   area within    the   arrestee' s   immediate      control."   MacDicken, 179 Wn.2d at 940.


        As the Washington Supreme Court recently stated in Byrd, a search of the arrestee' s

person "   including         articles   of   the person    such   as    clothing    or     personal   effects,   require[ s] `   no



additional    justification' beyond the validity            of   the   custodial arrest."      Byrd, 178 Wn.2d at 617 -18


 quoting United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed 2d 427 ( 1973)).

A search of the area within the arrestee' s immediate control, in contrast, must be " justified by

concerns of officer safety or the preservation of evidence and are limited to those areas within

reaching distance       at   the time    of the search."    MacDicken, 179 Wn.2d at 941.


        Washington            courts     employ the " time        of arrest"      rule to determine whether a search


incident to arrest involves a search of the arrestee ( and articles " immediately associated" with the

arrestee' s   person)    or a     search of     the    area within     the   arrestee' s   immediate     control.     Byrd, 178


Wn.2d   at    621.    Under this rule, an article is " immediately associated" with the arrestee' s person

and can be searched under Robinson, without further justification for police safety or evidence

preservation, if it is a " personal [ article] in the arrestee' s actual and exclusive possession at or




3Although Fulton' s arguments also implicate the Fourth Amendment, " article I, section 7 of the
Washington Constitution, provides, at the least, co- extensive protection of individual privacy
rights." Ellison, 172 Wn. App. at 719. Accordingly, we do not separately address Fulton' s
concerns on Fourth Amendment grounds.



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No. 43945 -0 -II




immediately      preceding the time             of arrest."    Byrd, 178 Wn.2d   at   623.   Moreover, it does not


matter   whether      the defendant is          separated     from the property —such    as being handcuffed and

secured    in   a patrol   car — at the time the search occurs so long as there is no significant delay

between the arrest and the search. Byrd, 178 Wn.2d at 624.

          Here, it is undisputed that Fulton' s satchel was in his exclusive possession and control at

the time   of   his   arrest.   See,   e. g.,   CP 47 ( Fulton asked Deputy Rice to bring the satchel on the

bench    next   to Fulton).     Further, it is undisputed that Rice validly arrested Fulton for carrying a

dangerous weapon. Accordingly, pursuant to Byrd and MacDicken, Rice appropriately searched

the bag as a lawful search incident to arrest and the trial court properly allowed this evidence to

be admitted at trial. We affirm Fulton' 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.




We concur:




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