                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        October 30, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 50372-7-II

                               Respondent,

        v.

 KASSANDRA MAE JEFFERS,                                      UNPUBLISHED OPINION

                               Appellant.

       JOHANSON, J. — Kassandra M. Jeffers appeals her stipulated facts bench trial conviction

for unlawful possession of methamphetamine. Jeffers argues that the trial court erred in denying

her motion to suppress the evidence obtained from the search of her purse. We affirm.

                                             FACTS

                                        I. BACKGROUND

       On the night of December 5, 2016, Officer Andrew Scrivner was on patrol duty when he

observed a silver minivan driven by Jeffers. Officer Scrivner knew Jeffers had a warrant for her

arrest and dispatch soon confirmed the warrant. Officer Scrivner arrested Jeffers and searched her

and her purse incident to arrest. Officer Scrivner found what he believed to be methamphetamine

in her purse. The State charged Jeffers with possession of a controlled substance.
No. 50372-7-II


                                       II. CRR 3.6 HEARING

       Jeffers moved to suppress the methamphetamine found in her purse. She argued that

Officer Scrivner unlawfully seized her purse without exigent circumstances to justify the seizure

and that the purse was not in her actual or immediate possession. The trial court held a CrR 3.6

suppression hearing. Officer Scrivner and Jeffers testified at the hearing.

       The trial court denied Jeffers’s motion to suppress the evidence found in her purse. The

trial court entered the following findings of fact and conclusions of law in support of its ruling

denying the motion to suppress:

                                    I. FINDINGS OF FACT
       ....
       1.1.    On 12/05/2016, Officer Andrew Scrivner (Toledo PD) was working in the
               City Limits of Toledo, Washington. He stopped his patrol vehicle at the
               stop sign at the intersection of Washington Street and South 3rd Street,
               Toledo.
       1.2.    Scrivner observed a silver minivan traveling north bound on South 3rd
               Street. Scrivner knew Kassandra Jeffers from previous traffic stops, and he
               knew Jeffers typically drives her mother’s silver minivan.
       1.3.    As the van passed, Scrivner’s front headlights lit up the driver’s
               compartment of the minivan and he immediately recognized the driver as
               Kassandra Jeffers.
       1.4.    Scrivner knew that Jeffers had a warrant out for her arrest because he had
               checked the warrant list before going on shift.
       1.5.    Scrivner pulled behind the minivan, activating his emergency lights and
               stopped the van. Scrivner made contact with Jeffers and informed her that
               she had a warrant out for her arrest. Scrivner called dispatch and asked to
               have the warrant confirmed.
       1.6.    Jeffers produced her driver’s license from her wallet.
       1.7.    Jeffers’s wallet was sitting on top of her purse.
       1.8.    Jeffers’s purse was located on the floor of the van, in between the two front
               bucket seats, a few inches from her leg and elbow.
       1.9.    Scrivner fully intended to take Jeffers to jail upon confirmation of the
               warrant.
       1.10.   While dispatch was confirming the warrant, Scrivner instructed Jeffers to
               grab her belongings to take with her to the jail.
       1.11.   Jeffers grabbed her purse and wallet, and got out of the minivan.


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No. 50372-7-II


       1.12.   Jeffers’s purse and wallet were closely associated with her when she was
               told to exit the vehicle.
       1.13.   Scrivner walked Jeffers back to the patrol car. Jeffers placed her purse on
               the top of the hood of the patrol car and Scriv[n]er put handcuffs on Jeffers
               in order to detain her pending confirmation of the warrant.
       1.14.   A few minutes later, dispatch advised the warrant had been confirmed.
       1.15.   Scrivner advised Jeffers she was under arrest for her warrant.
       1.16.   Scrivner conducted a search incident to arrest of both Jeffers and her purse.
       1.17.   Scrivner opened the purse and found two black makeup bags. As Scrivner
               opened the first makeup bag, he immediately noted several syringes and a
               plastic container.
       1.18.   There was a bundle of white crystalline substance inside the container.
               Based on his training, knowledge, and experience, Scrivner believed the
               substance to be methamphetamine.
       1.19.   A [Narcotic Identification Kit] Test of the substance indicated positive for
               methamphetamine.
       1.20.   Scrivner impounded the van after he arrested Jeffers. The van was
               inventoried, and additional items of evidence were found. The State and
               Defense have stipulated that none of these items will [be] used at trial, and
               both agree to suppression of all evidence obtained via the impound
               inventory.
                                  II. CONCLUSIONS OF LAW

             2.1. The defendant’s purse was closely associated to her at the time of, and
       immediately preceding, her arrest.
             2.2. The Officer’s search of Jeffers, her wallet and her purse were
       conducted incident to the defendant’s arrest.

Clerk’s Papers (CP) at 21-23.

                                  III. STIPULATED BENCH TRIAL

       Jeffers proceeded with a stipulated facts bench trial. The entered facts were nearly identical

to the findings of fact from the CrR 3.6 hearing. The trial court found Jeffers guilty of possession

of a controlled substance.




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No. 50372-7-II


                                           ANALYSIS

                                     I. STANDARD OF REVIEW

       We review a trial court’s ruling on a suppression motion to determine whether substantial

evidence supports the challenged findings of fact and whether the findings support the trial court’s

conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). We treat

unchallenged findings of fact as verities on appeal. State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d

489 (2003). We review conclusions of law de novo. Garvin, 166 Wn.2d at 249. A conclusion of

law is a determination “made by a process of legal reasoning from facts in evidence.” State v.

Niedergang, 43 Wn. App. 656, 658-59, 719 P.2d 576 (1986). A conclusion of law erroneously

labeled a finding of fact is reviewed as a conclusion of law. State v. Z.U.E., 178 Wn. App. 769,

779 n.2, 315 P.3d 1158 (2014), aff’d, 183 Wn.2d 610, 352 P.3d 796 (2015).

                               II. MISLABELED FINDINGS OF FACT

       As a threshold issue, Jeffers argues that the trial court mislabeled finding of fact 1.12 and

she claims it is actually a conclusion of law. We agree.

       Finding of fact 1.12 states, “Jeffers’s purse and wallet were closely associated with her

when she was told to exit the vehicle.” CP at 22. This is almost identical to the conclusion of law

2.1: “The defendant’s purse was closely associated to her at the time of, and immediately

preceding, her arrest.” CP at 23. The location of an item is an issue of fact, but the determination

“made by a process of legal reasoning from facts” that the articles were closely associated with

Jeffers is a conclusion of law. Niedergang, 43 Wn. App. at 658-59. We hold that the trial court

erroneously labeled finding of fact 1.12 and it should be reviewed de novo as a conclusion of law.




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No. 50372-7-II


                                III. SEARCH INCIDENT TO ARREST

       Jeffers argues that the trial court erred when it denied her motion to suppress because the

search of her purse was unlawful. We disagree.

                                     A. PRINCIPLES OF LAW

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

State Constitution unless the State proves one of the “‘carefully drawn and jealously guarded

exceptions’” applies. State v. Byrd, 178 Wn.2d 611, 616, 310 P.3d 793 (2013) (quoting State v.

Bravo 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. Byrd, 178 Wn.2d at 617. First, there may

be a search of the area within the arrestee’s control. Byrd, 178 Wn.2d at 617. A warrantless search

of the area within the arrestee’s control “must be justified by concerns that the arrestee might

otherwise access the article to obtain a weapon or destroy evidence.” Byrd, 178 Wn.2d at 617.

Second, there may be a warrantless search of the arrestee’s person. Byrd, 178 Wn.2d at 617.

Searches of the arrestee’s person presume exigencies and do not require a case-by-case

determination that the search was justified by concerns of officer safety or evidence preservation.

Byrd, 178 Wn.2d at 618.

             B. ARTICLES IMMEDIATELY ASSOCIATED WITH AN ARRESTEE’S PERSON

1.     ACTUAL POSSESSION

       Jeffers argues that the Byrd case does not support the trial court’s decision that the search

of Jeffers’s purse was a lawful search incident to arrest because the purse was not in her actual

possession at the time of the seizure (when Officer Scrivner pulled her over). She says that unlike




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No. 50372-7-II


Byrd, here, she was not holding her purse at the time of her seizure, but it was instead on the floor

of the van.

       The State argues that under Byrd and State v. Brock, 184 Wn.2d 148, 355 P.3d 1118 (2015),

the search was lawful and the trial court correctly denied Jeffers’s motion to suppress. We agree

with the State.

2.     BYRD AND BROCK

       The Byrd court held that the officer’s search of Byrd’s purse was a lawful search incident

to arrest because the purse was immediately associated with Byrd’s person. 178 Wn.2d at 623-24.

At the time of her arrest, Byrd sat in the front passenger seat of the car with her purse in her lap.

Byrd, 178 Wn.2d at 615. Before removing Byrd from the car, the officer took her purse and placed

it on the ground. Byrd, 178 Wn.2d at 615. The officer then placed Byrd in a patrol car and returned

to search the purse. Byrd, 178 Wn.2d at 615. He found a sunglasses case in the purse that

contained methamphetamine. Byrd, 178 Wn.2d at 615.

       The court held that a search of an arrestee’s person extends to articles “immediately

associated” with the arrestee’s person. Byrd, 178 Wn.2d at 621. To determine whether an article

is immediately associated with an arrestee’s person, the courts look at whether the arrestee had

“actual and exclusive possession at or immediately preceding the time of arrest.” Byrd, 178 Wn.2d

at 623. The court cautioned that this does not include items merely within the arrestee’s reach, but

instead held that searches of an arrestee’s person extend only to personal items “‘in such immediate

physical relation to the one arrested as to be in a fair sense a projection of his person.’” Byrd, 178

Wn.2d at 623 (quoting United States v. Rabinowitz, 339 U.S. 56, 78, 70 S. Ct. 430, 94 L. Ed. 653

(1950) (Frankfurter, J., dissenting), overruled in part by Chimel v. California, 395 U.S. 752, 89 S.


                                                  6
No. 50372-7-II


Ct. 2034, 23 L. Ed. 2d 685 (1969)); see also State v. Johnson, 155 Wn. App. 270, 282, 229 P.3d

824 (2010) (holding that a warrantless search of the defendant’s purse was a reasonable search of

her person when she exited her vehicle with her purse, she was arrested, placed in the patrol car,

and then the officer searched her purse).

       Our Supreme Court in Brock further examined the scope of “‘immediately preceding

arrest.’” 184 Wn.2d at 154 (quoting Byrd, 178 Wn.2d at 623)). In Brock, an officer stopped Brock

and removed the backpack Brock was wearing. 184 Wn.2d at 150-51. The officer placed the

backpack in the patrol car. Brock, 184 Wn.2d at 152. After questioning Brock, the officer arrested

him. Brock, 184 Wn.2d at 152. The officer then searched Brock’s backpack. Brock, 184 Wn.2d

at 152-53.

       Our Supreme Court held that the backpack was a part of Brock’s person, even though he

was not wearing the backpack at the time of the arrest. Brock, 184 Wn.2d at 159. The court held

that the lapse of time had little effect on whether the backpack was in his possession immediately

preceding his arrest, but “[t]he proper inquiry is whether possession so immediately precedes arrest

that the item is still functionally a part of the arrestee’s person.” Brock, 184 Wn.2d at 158. The

court further explained that “personal items that will go to jail with the arrestee are considered in

the arrestee’s ‘possession’ and are within the scope of the officer’s authority to search.” Brock,

184 Wn.2d at 158.

       Jeffers argues that Byrd and Brock require the arrestee to have “‘actual and exclusive

possession at or immediately preceding the time of arrest’” and that Jeffers did not have actual




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No. 50372-7-II


possession of the purse at the time she was stopped.1 Reply Br. of Appellant at 6 (quoting Brock,

184 Wn.2d at 154 (quoting Byrd, 178 Wn.2d at 623)). Jeffers argues that Washington law

distinguishes between actual and constructive possession. She relies on State v. Jones, 146 Wn.2d

328, 333, 45 P.3d 1062 (2002), to support this argument.

        Jones is a pre-Brock/Byrd case that discussed actual and constructive possession in regard

to whether Jones had automatic standing to challenge the search of a passenger’s purse. 146 Wn.2d

at 332-33. It defined actual possession as when a defendant “has physical custody of the item”

and constructive possession as when a defendant has “dominion and control over the item.” Jones,

146 Wn.2d at 333. However, Byrd stated that in the context of a search incident to arrest, actual

possession includes items “‘in such immediate physical relation to the one arrested as to be in a

fair sense a projection of h[er] person.’” 178 Wn.2d at 623 (quoting Rabinowitz, 339 U.S. at 78

(Frankfurter, J., dissenting)).

        Here, Jeffers was within inches of her purse inside of her minivan and she also grabbed her

identification out of her wallet that was on top of her purse when Officer Scrivner seized her.

Based on these facts, Jeffers’s purse was “‘in such immediate physical relation to [her] as to be in

a fair sense a projection of h[er] person’” at the time of the seizure. Byrd, 178 Wn.2d at 623

(quoting Rabinowitz, 339 U.S. at 78 (Frankfurter, J., dissenting)). Officer Scrivner then told Jeffers

to grab her belongings to bring with her to jail and she responded by grabbing her purse and wallet




1
  Jeffers argues that she did not have actual possession of the purse at the time she was seized. But
the relevant time for the search incident to arrest exception is the time “at or immediately preceding
the time of arrest,” not the time of the seizure. Byrd, 178 Wn.2d at 623. However, she appears to
focus her argument on the time of the seizure to support her later (incorrect) argument that she
only had actual possession when Officer Scrivner ordered her to grab her purse out of her minivan.

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No. 50372-7-II


as she exited her minivan and placed them on top of the patrol car. Dispatch confirmed the warrant,

and Officer Scrivner then searched Jeffers and her purse incident to arrest. Thus, the unchallenged

findings of fact support the conclusion that immediately preceding arrest, Jeffers’s purse was

closely associated with her as to be a “‘projection of h[er] person.’” Byrd, 178 Wn.2d at 623

(quoting Rabinowitz, 339 U.S. at 78 (Frankfurter, J., dissenting)). The purse was also a personal

item that Jeffers was going to take to jail and, therefore, according to Brock, it was in her

possession. 184 Wn.2d at 158.

       We hold that Jeffers’s argument fails.

2.     OFFICER SCRIVNER ORDERED JEFFERS TO GRAB HER BELONGINGS

       Jeffers argues that the only reason she had actual possession of the purse was because

Officer Scrivner ordered her to grab her purse. Therefore, she argues that if she had exited the

minivan without the purse, Officer Scrivner would have needed a warrant to search it and that he

unlawfully created an exigent circumstance. We disagree.

       Jeffers cites to Byrd and State v. Snapp, 174 Wn.2d 177, 275 P.3d 289 (2012), to support

her argument that had Officer Scrivner not ordered her to grab her purse, he would have needed a

warrant to search it. Byrd stated, “Police may not evade Gant[2] by removing an article from a car

before searching it. . . . It is because, under Chimel, the State must justify the warrantless search




2
  Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). In Gant, the United
States Supreme Court held that “[p]olice may search a vehicle incident to a recent occupant’s arrest
only if the arrestee is within reaching distance of the passenger compartment at the time of the
search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 556
U.S. at 351.

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No. 50372-7-II


of every article not on the arrestee’s person or closely associated with the arrestee’s person at the

time of his or her arrest.” 178 Wn.2d at 624-25.

       The issue in Snapp was whether the officers’ warrantless searches of the defendants’

vehicles were lawful. 174 Wn.2d at 187. Snapp held that once a person is secured and removed

from a vehicle, she no longer poses a risk of obtaining a weapon or destroying evidence and a

warrantless search of the vehicle is not justified. 174 Wn.2d at 189-90.

       Jeffers’s arguments are unpersuasive because while a search of the area within the

arrestee’s control requires there to be concerns of officer safety or the preservation of evidence to

justify the search; there does not need to be justification “beyond the validity of the custodial

arrest” for a search of articles on or “closely associated” with an arrestee’s person. Byrd, 178

Wn.2d at 617-18, 625. Here, even before Jeffers grabbed her purse out of the minivan, her purse

was closely associated with her immediately preceding arrest because it was located a few inches

from her body, and she retrieved her identification from her wallet on top of her purse. Therefore,

Jeffers’s argument fails.

       Jeffers also argues that Officer Scrivner unlawfully created an exigent circumstance by

ordering her to grab her purse and that an officer cannot justify a search by creating exigent

circumstances. Jeffers contends that since articles associated with an arrestee’s person are allowed

to be searched incident to arrest without a warrant because they always implicate concerns for the

exigencies of officer safety or the preservation of evidence, that Officer Scrivner manufactured




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No. 50372-7-II


these exigent circumstances by ordering Jeffers to grab her purse. She cites to State v. Hall, 53

Wn. App. 296, 302-03, 766 P.2d 512 (1989) (describing the factors to be considered to determine

whether exigent circumstances are present and noting that the exigent circumstances cannot be

created by the police themselves), United States v. Webster, 750 F.2d 307, 327 (5th Cir. 1984)

(stating that government agents cannot deliberately create exigent circumstances), and United

States v. Thompson, 700 F.2d 944, 950 (5th Cir. 1983) (providing that agents cannot justify a

search by creating exigent circumstances).

       However, unchallenged findings of fact are verities on appeal. O’Neill, 148 Wn.2d at 571.

And here, it is an unchallenged finding of fact that Officer Scrivner instructed Jeffers to grab her

“belongings” to take with her to jail and that Jeffers responded by grabbing her purse and wallet.

CP at 22. Thus, he did not create an exigent circumstance because he did not tell her to grab her

purse out of the minivan, and her purse was already closely associated with her inside of her

minivan. Therefore, Officer Scrivner did not create an exigent circumstance and he did not need

a warrant to search her purse because it was closely associated with her immediately preceding her

arrest. Accordingly, Jeffers’s argument fails.

3.     NATURE OF THE ITEM SEARCHED

       Jeffers also argues that the trial court erred when denying her suppression motion because

a woman’s purse is not automatically a part of an arrestee’s person. She relies on Byrd to support

her argument. We reject this argument.




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No. 50372-7-II


        Jeffers is correct that a purse is not automatically associated with an arrestee’s person,

however her argument fails. In Byrd, the court held that a purse was immediately associated with

Byrd’s person because “‘the purse was within Ms. Byrd’s reach and could even be described as on

her person, not only at the stop but at the time of arrest.’” 178 Wn.2d at 623 (quoting State v.

Byrd, 162 Wn. App. 612, 618, 258 P.3d 686 (2011) (Brown, J., dissenting), rev’d, 178 Wn.2d

611)). Likewise, here, the trial court’s ruling on the motion was not solely based on the nature of

the item being a purse.3 The trial court focused on “the fact that it was [a] woman’s purse, [and]

the fact that it was inches away from her right where her wallet was.” Verbatim Report of

Proceedings (March 3, 2017) at 45. The trial court made unchallenged findings that Jeffers’s purse

was located on the floor of the van “a few inches from her leg and elbow,” that Jeffers retrieved

her identification from her wallet that was on top of her purse, and that she grabbed her purse when

she got out of her minivan. CP at 22. These findings support the conclusion that Jeffers’s purse

was closely associated with her immediately preceding her arrest. Jeffers’s argument fails.




3
  Jeffers appears to be relying on the trial court’s oral ruling where the trial court stated, “This
issue turns on the nature of this item and the nature of this being a woman’s purse. There are very
few things that are much more closely associated with a person than a woman’s purse.” Verbatim
Report of Proceedings (March 3, 2017) at 44. Although we may consider a trial court’s oral ruling
to interpret its written findings, we cannot rely on the oral ruling if it is inconsistent with the written
findings. State v. Kull, 155 Wn.2d 80, 88, 118 P.3d 307 (2005). The oral ruling appears to be
inconsistent with its written ruling inasmuch as it relies solely on the nature of the item searched.

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No. 50372-7-II


                                          C. CONCLUSION

        In conclusion, the trial court’s findings of fact support its conclusions of law. We hold that

the trial court did not err when it denied Jeffers’s suppression motion. 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.



                                                      JOHANSON, J.
 We concur:



 WORSWICK, P.J.




 MELNICK, J.




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