(dissenting) — Because I disagree with the majority’s opinion that the evidence supports the trial court’s imposition of a deadly weapon enhancement to Samuel Gurske’s sentence, I respectfully dissent.
*67The majority concludes the pistol in Mr. Gurske’s vehicle was “ ‘within arms reach from the driver’s position.’ ” Majority at 64. I agree the proximity of the pistol was very close to Mr. Gurske throughout the series of events leading to his arrest. Where the majority and I differ is when it concludes that close proximity equates to being armed for purposes of the deadly weapon statute. RCW 9.94A.602. I write separately to voice my disagreement.
Our Supreme Court has recently held that “ ‘[a] person is “armed” if a weapon is easily accessible and readily available for use, either for offensive or defensive purposes.’ ” State v. Schelin, 147 Wn.2d 562, 567, 55 P.3d 632 (2002) (quoting State v. Valdobinos, 122 Wn.2d 270, 282, 858 P.2d 199 (1993)). The Schelin case, however, is distinguishable from the case before us. Mr. Schelin was arrested in his home after police, executing a search warrant, found evidence of a marijuana grow operation. Id. at 563-64. Mr. Schelin was in the basement at the bottom of the stairs, within 6 to 10 feet of a loaded weapon, when police discovered him. Id. at 564. Mr. Schelin complied with the police order to walk up the stairs, where he was handcuffed. Id. On appeal, our Supreme Court was asked to determine whether Mr. Schelin was armed during the commission of the drug crimes for purposes of the deadly weapon sentencing enhancement. The plurality decision found he was armed since the loaded weapon was within easy reach and a nexus had been established between the weapon and the crime (i.e., gun could be used to protect grow operation in furtherance of the crime). Id. at 574-75.
As I review the facts of this case, I do not find the pistol was “easily accessible” or “readily available for use” as required by Schelin. At all times, from the initial traffic stop to Mr. Gurske’s arrest and placement in the back of the patrol car, the pistol remained in the same place: in the backseat of his truck behind the driver’s seat, inside a holster that was inside a black backpack that was zipped closed. Clerk’s Papers (CP) at 16. By the court’s own admission “the backpack was not removable by the driver *68without first either exiting the vehicle or moving into the passenger seat location.” CP at 16. These facts are critical to the outcome of whether the trial court erred when it imposed the deadly weapon enhancement.
I believe the facts presented here are similar to those set forth in Valdobinos, 122 Wn.2d at 282, whereby our Supreme Court determined the evidence was insufficient to qualify Mr. Valdobinos as armed pursuant to the deadly weapon statute. Mr. Valdobinos offered to sell cocaine to an undercover officer at a tavern. Id. at 273. Three days later, officers conducted a search at his residence, pursuant to a warrant, where they discovered cocaine. Id. at 273-74. After the people present were removed from the scene, officers also found an unloaded rifle, drugs, and money under the bed in a bedroom. Id. at 273-74, 281. On appeal, the court determined that evidence of the unloaded rifle found under the bed, “without more,” was “insufficient to qualify [Mr.] Valdobinos as ‘armed’ in the sense of having a weapon accessible and readily available for offensive or defensive purposes” during the commission of the crime of delivery and conspiracy to deliver cocaine. Id. at 282. This same scenario, of mere constructive possession, exists under the facts before us. The discovery of the unloaded pistol in Mr. Gurske’s backpack, without more, does not equate to being armed, in the sense of having access to a weapon that was readily available for use. Relying on Valdobinos, I would uphold the conviction for the drug charge but would reverse the sentence enhancement.
Review granted at 152 Wn.2d 1013 (2004).