The State of Washington, Petitioner, v. Lisa Ann Byrd, Respondent, 178 Wash. 2d 611

Stephens, J. ¶1 This case concerns the search of an arrestee’s purse incident to her arrest. The decisive question is whether the search of Lisa Byrd’s purse was a search of her person. Because the purse was in her lap when she was arrested, it was an

article of her person under the long standing “time of arrest” rule. Neither the United States Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), nor our decision in State v. Valdez, 167 Wn.2d 761, 224 P.3d 751 (2009), restricts searches of the arrestee’s person. If the arrest was lawful, the arresting officer was entitled to search Byrd’s person and articles closely associated with her person without showing the search was motivated by particularized concerns for officer safety or evidence preservation.

We reverse the Court of Appeals and remand for further proceedings in the trial court. FACTS AND PROCEDURAL HISTORY ¶2 On the evening of November 17, 2009, Yakima Police Officer Jeff Ely ran the plates on a Honda Civic he observed parked on the side of the road. Clerk’s Papers (CP) at 5; Verbatim Tr. of Hr’g (VTH) at 4. Ely determined that the plates were registered to an Acura Integra. VTH at 4-5. He contacted the plates’ owner, who confirmed that they were stolen. Id. at 11-12. During Ely’s investigation, Lisa Ann Byrd and a companion entered the Civic and drove away, with Byrd’s companion driving. Id. at 5.

Ely initiated a felony traffic stop. Id. at 5, 14. He arrested and secured the driver, who claimed the car belonged to Byrd. Id. at 14-15. ¶3 Ely returned to the car and placed Byrd under arrest for possession of stolen property. Id. at 15. At the time of her arrest, Byrd sat in the front passenger seat with her purse in her lap. Id. at 6, 16. Before removing Byrd from the car, Ely seized the purse and set it on the ground nearby. Id. at 6, 17. He secured Byrd in a patrol car and returned to the purse within “moments” to search it for weapons or contraband. Id. at 6.

Inside a sunglasses case in Byrd’s purse, Ely found methamphetamine. Id. at 7. ¶4 At the suppression hearing, the trial court conceded that “[t]he facts here fall slightly outside of being completely on point with Gant and Valdez” but nonetheless concluded that the search of Byrd’s purse was valid only if it was motivated by concerns for officer safety or evidence preservation, as described in these cases. CP at 4. The trial court’s questioning of Ely focused on whether these exigencies were present.

See VTH at 19-20 (“[W]as there any concern ... that she would be able to either access a weapon in the purse or destroy any evidence that might be in the purse?”). Because Byrd was secured and unable to access the purse, the court held Ely’s search was unlawful and granted Byrd’s motion to suppress. CP at 4, 6. ¶5 The Court of Appeals agreed, holding that the search of Byrd’s purse had to be justified by concerns for evidence preservation or officer safety. State v. Byrd, 162 Wn. App. 612, 615-16, 258 P.3d 686 (2011) (citing Gant, 556 U.S. at 343; Valdez, 167 Wn.2d at 780 (J.M. Johnson, J., concurring)).

Because Byrd was restrained and could not obtain a weapon from or destroy evidence in her purse when Ely searched it, the court affirmed the trial court’s order suppressing the fruits of the search. Id. at 617. We granted review. State v. Byrd, 173 Wn.2d 1001, 268 P.3d 942 (2011). ANALYSIS ¶6 Byrd asserts that the search of her purse violated the Fourth Amendment to the United States Constitution and

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section 7 of the Washington State Constitution. The Fourth Amendment provides for “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV.

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section 7 does not turn on reasonableness, instead guaranteeing that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const, art. I, § 7. ¶7

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section 7 is more protective of individual privacy than the Fourth Amendment, and we turn to it first when both provisions are at issue. State v. Bravo Ortega, 177 Wn.2d 116, 122, 297 P.3d 57 (2013) (citing State v. Walker, 157 Wn.2d 307, 313, 138 P.3d 113 (2006)); State v. Afana, 169 Wn.2d 169, 176, 233 P.3d 879 (2010). Under

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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. Bravo Ortega, 177 Wn.2d at 122 (citing Afana, 169 Wn.2d at 176-77; State v. Patton, 167 Wn.2d 379, 386, 219 P.3d 651 (2009)). ¶8 At issue here is the search incident to arrest exception. We begin by describing the origins and operation of the two discrete branches of this exception. The Search Incident to Arrest Exception to the Warrant Requirement ¶9 The search incident to arrest embraces not one but two analytically distinct concepts under Fourth Amendment and

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section 7 jurisprudence. In United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), the United States Supreme Court explained that the exception “has historically been formulated into two distinct propositions.” ¶10 The first of these propositions is that “a search may be made of the area within the control of the arrestee.” Id. In Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), the Court held that these searches must be justified by concerns that the arrestee might otherwise access the

article to obtain a weapon or destroy evidence. New York v. Belton, 453 U.S. 454, 459-61, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), was a short-lived exception to Chimel that permitted police to search the interior of a car incident to an occupant’s arrest without demonstrating concerns for officer safety or evidence preservation. However, in Gant, 556 U.S. at 335, the Court overruled Belton, holding that all searches of an arrestee’s surroundings, including the interior of a car, must comply with Chimel. Searches of an arrestee’s surroundings require the same justifications under

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section 7. Valdez, 167 Wn.2d at 777; Patton, 167 Wn.2d at 386; see State v. Snapp, 174 Wn.2d 177, 188-89, 275 P.3d 289 (2012) (citing Chimel, 395 U.S. at 762-63). ¶11 Under the second proposition of the search incident to arrest, “a search may be made of the person of the arrestee by virtue of the lawful arrest.” Robinson, 414 U.S. at 224. In Robinson, the Court held that under “the long line of authorities of this Court dating back to Weeks [v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L.

Ed. 652 (1914)]” and “the history of practice in this country and in England,” searches of an arrestee’s person, including articles of the person such as clothing or personal effects, require “no additional justification” beyond the validity of the custodial arrest. 414 U.S. at 235.

Instead, a search of the arrestee’s person is “not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” Id. ¶12 Unlike searches of the arrestee’s surroundings, searches of the arrestee’s person and personal effects do not require “a case-by-case adjudication” because they always implicate Chimel concerns for officer safety and evidence preservation. Id.

Thus, their validity “does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Id.; see Virginia v. Moore, 553 U.S. 164, 176-77, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008) (holding “[t]he interests justifying search are present whenever an officer makes an arrest”). ¶13 The authority to search an arrestee’s person and personal effects flows from the authority of a custodial arrest itself.

Robinson, 414 U.S. at 232 (noting “ ‘[t]he peace officer empowered to arrest must be empowered to disarm. If he may disarm, he may search, lest a weapon be concealed’ ” (quoting People v. Chiagles, 237 N.Y. 193, 197, 142 N.E. 583, 584 (1923) (Cardozo, J.))); see State v.

Hehman, 90 Wn.2d 45, 49-50, 578 P.2d 527 (1978) (recognizing an arresting officer’s “unqualified authority” under Robinson to search the arrestee’s person pursuant to lawful arrest). ¶14 Because this exception is rooted in the arresting officer’s lawful authority to take the arrestee into custody, rather than the “reasonableness” of the search, it also satisfies

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section 7’s requirement that incursions on a person’s private affairs be supported by “authority of law.” See State v. Grande, 164 Wn.2d 135, 139, 187 P.3d 248 (2008) (holding “an arrest gives ‘authority of law’ to search, except where the arrest itself is unlawful” (citing State v. Parker, 139 Wn.2d 486, 987 P.2d 73 (1999))). Indeed, in State v.

Ringer, 100 Wn.2d 686, 691-92, 674 P.2d 1240 (1983), we noted that at the time the Washington constitution was adopted, it was “universally recognized that warrantless searches were allowed of the person of an arrestee when incident to lawful arrest” (citing State ex rel. Murphy v. Brown, 83 Wash. 100, 105-06, 145 P. 69 (1914)). And in State v.

Hughlett, 124 Wash. 366, 370, 214 P. 841 (1923), overruled on other grounds by Ringer, 100 Wn.2d at 695, 699, we held that “a peace officer, when he makes a lawful arrest, may lawfully, without a search warrant, search the person arrested and take from him any evidence.” ¶15 This court has long recognized the distinction between searches of the arrestee’s person and surroundings. In Parker, 139 Wn.2d at 510, we explained that the rules of Chimel and Robinson are distinct because “Chimel applies to the area within the immediate control of the arrestee and Robinson to the person of the arrestee.” In State v.

Johnson, 155 Wn. App. 270, 282, 229 P.3d 824 (2010), the Court of Appeals reaffirmed this distinction, holding that the search of an arrestee’s purse was a search of her person, not a search of her vehicle. Notwithstanding the deep historical roots of these two doctrines, the Court of Appeals in this case overruled Johnson, dismissing the distinction between searches of a vehicle and searches of the arrestee’s person and opining that “[a] search incident to an arrest is a search incident to an arrest whether the object searched is a car or a purse.” Byrd, 162 Wn. App. at 617. ¶16 The Court of Appeals erred.

Johnson is consistent with Robinson and remains good law because neither Gant nor Valdez requires case-specific showings of officer safety or evidence preservation to justify the search of an arrestee’s person. Indeed, neither Gant nor Valdez (nor any of the cases they rely on or support) even cite to Robinson except in passing. This is no surprise, as these cases deal only with searches of the area immediately around the arrestee, not searches of the arrestee’s person.

See Gant, 556 U.S. at 336 (search of jacket in backseat outside driver’s control); Belton, 453 U.S. at 462 (search of vehicle interior); Afana, 169 Wn.2d at 174 (same); Snapp, 174 Wn.2d at 182-86 (same); Valdez, 167 Wn.2d at 768-78 (same); Patton, 167 Wn.2d at 382 (same); State v. Stroud, 106 Wn.2d 144, 145-46, 720 P.2d 436 (1986) (same); Ringer, 100 Wn.2d at 688, 697 (same). ¶17 The lower courts in this case erred by conflating the two distinct branches of the search incident to arrest exception, and the dissent would perpetuate the error.

Although the dissent concedes that custodial arrest “always justifies a search of the arrestee’s person,” it complains that the officer “could have delayed the search” because no exigencies were present. Dissent at 633. This complaint overlooks the fact that exigencies are presumed when an officer searches an arrestee’s person. The search incident to arrest rule respects that an officer who takes a suspect into custody faces an unpredictable and inherently dangerous situation and that officers can and should put their safety first.

Neither Gant nor Valdez circumscribed the State’s authority to search an arrestee’s person, and these searches remain valid under the Fourth Amendment and

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section 7 so long as they are incident to a lawful custodial arrest, whatever exigencies the dissent perceives in hindsight. Assuming Ely had probable cause to arrest Byrd, the search of her purse was valid if it was a search of an

article of her person, as discussed below. The “Time of Arrest” Rule ¶18 Whether 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. See United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) (requiring Chimel justification only for searches of “personal property not immediately associated with the person of the arrestee” (emphasis added)), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991). Many courts, including Washington courts, draw a bright line between these two prongs of the search incident to arrest exception with the “time of arrest” rule. ¶19 Under this rule, an

article is “immediately associated” with the arrestee’s person and can be searched under Robinson if the arrestee has actual possession of it at the time of a lawful custodial arrest. See United States v. Oakley, 153 F.3d 696, 697-98 (8th Cir. 1998) (backpack); United States v. Tavolacci, 283 U.S. App. D.C. 1, 895 F.2d 1423, 1428-29 (1990) (luggage); Carter v. State, 367 Md. 447, 788 A.2d 646, 655 (2002) (lunch bag); State v. Ellis, 355 S.W.3d 522, 524-25 (Mo. Ct. App. 2011) (backpack); People v. Brown, 36 A.D.3d 931, 828 N.Y.S.2d 550, 551 (2007) (backpack); People v.

Boff, 766 P.2d 646, 651-52 (Colo. 1988) (backpack); see generally Andrea G. Nadel, Annotation, Lawfulness of Warrantless Search of Purse or Wallet of Person Arrested or Suspected of Crime, 29 A.L.R.4th 780, § 3[a] (1984 & 2012 Supp.) (collecting cases). ¶20 The time of arrest rule reflects the practical reality that a search of the arrestee’s “person” to remove weapons and secure evidence must include more than his literal person. In United States v.

Graham, 638 F.2d 1111, 1114 (7th Cir. 1981), the court explained that “[t]he human anatomy does not naturally contain external pockets, pouches, or other places in which personal objects can be conveniently carried.” When police take an arrestee into custody, they also take possession of his clothing and personal effects, any of which could contain weapons and evidence. See United States v. Edwards, 415 U.S. 800, 806, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974) (observing that “the police had lawful custody of [the suspect] and necessarily of the clothing he wore”).

The time of arrest rule recognizes that the same exigencies that justify searching an arrestee prior to placing him into custody extend not just to the arrestee’s clothes, however we might define them, but to all articles closely associated with his person. ¶21 Washington courts have long applied this rule, holding that searches of purses, jackets, and bags in the arrestee’s possession at the time of arrest are lawful under both the Fourth Amendment and

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section 7. In State v. Bonds, 174 Wn. App. 553, 569-70, 299 P.3d 663 (2013), the Court of Appeals correctly reasoned that searches of an arrestee’s person were untouched by Gant and Valdez, and that a warrantless search of the arrestee’s personal effects satisfies both the Fourth Amendment and

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section 7. This was entirely consistent with Hughlett, 124 Wash, at 370, in which we reasoned that “[i]f a search may be made of the person or clothing of the person lawfully arrested, then it would follow that a search may also be properly made of his grip or suitcase which he may be carrying.” See Parker, 139 Wn.2d at 498-99 (recognizing that under

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section 7, “[p]ersonal items may be ‘so intimately connected with’ an individual that a search of the items constitutes a search of the person” (quoting State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994))); State v. Smith, 119 Wn.2d 675, 681, 835 P.2d 1025 (1992) (finding search incident to arrest lawful under the Fourth Amendment if “the object searched was within the arrestee’s control when he or she was arrested”); Ringer, 100 Wn.2d at 697 (recognizing under

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section 7 “ ‘[the] right to search and seize without a search warrant extends to things under the accused’s immediate control’ ” (quoting Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964))); see also State v. Serano Salinas, 169 Wn. App. 210, 220-22, 279 P.3d 917 (2012) (collecting cases, and holding under

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section 7, “[t]he fact of a lawful arrest is enough by itself to justify a warrantless search of the person,” including “clothing and personal possessions closely associated with clothing”), review denied, 176 Wn.2d 1002 (2013); State v. Seitz, 86 Wn. App. 865, 869, 941 P.2d 5 (1997) (holding that officers could lawfully search an arrestee’s purse, but not a purse belonging to a nonarrested passenger). ¶22 We caution that the proper scope of the time of arrest rule is narrow, in keeping with this “jealously guarded” exception to the warrant requirement. Bravo Ortega, 177 Wn.2d at 122.

It does not extend to all articles in an arrestee’s constructive possession, but only those personal articles in the arrestee’s actual and exclusive possession at or immediately preceding the time of arrest. Some of our cases contain dicta, based on loose language from Belton, suggesting that the rule covers articles within the arrestee’s reach. See, e.g., Smith, 119 Wn.2d at 681-82 (holding correctly that an arrestee’s purse is an

article of her person but claiming a broader rule). This suggestion is incorrect. Searches 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.” United States v. Rabinowitz, 339 U.S. 56, 78, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J., dissenting) (describing the historical limits of the exception). Extending Robinson to articles within the arrestee’s reach but not actually in his possession exceeds the rule’s rationale and infringes on territory reserved to Gant and Valdez. ¶23 Here, Byrd’s purse was unquestionably an

article “immediately associated” with her person. As the dissenting judge in the Court of Appeals astutely observed, “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.” Byrd, 162 Wn. App. at 618 (Brown, J., dissenting). The purse left Byrd’s hands only after her arrest, when Ely momentarily set it aside.

There was no “significant delay between the arrest and the search” that would “render[ ] the search unreasonable.” Smith, 119 Wn.2d at 683; see Chadwick, 433 U.S. at 15 (rejecting search of a footlocker more than an hour after arrest as too remote in time and place). Assuming Ely had probable cause to place Byrd under arrest, he had lawful authority to remove her and all articles closely associated with her person from the car, and the search was valid under the Fourth Amendment and

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section 7. ¶24 Byrd’s assertion that “[a]bsent the forced removal” her purse was “associated with the vehicle” either overlooks the time of arrest rule or asks us to tacitly overrule it. Br. of Resp’t at 10. Byrd cites no authority for the claim that she could have shed the purse after being placed under arrest, and her proposed rule has no limits. If an officer cannot prevent an arrestee from leaving her purse in a car, what of other personal articles, such as an arrestee’s jacket, a “baggie” of drugs, or a concealed firearm?

We reject Byrd’s claim and hold that if Ely had authority to seize Byrd and place her under custodial arrest, he also had authority to seize articles of her person, including her clothing and purse that were in her possession at the time of arrest. ¶25 Finally, Byrd asks us to hold that the purse was within a special zone of protection because it was “located in the car’s constitutionally protected interior.” Br. of Resp’t at 12. This misstates the issue.

Gant did not enact special constitutional protections for belongings inside cars; it restored the same protections all searches of an arrestee’s surroundings enjoy under Chimel. Gant, 556 U.S. at 343 (citing Belton, 453 U.S. at 460). These protections are no broader than Chimel and do not include the arrestee’s person or her personal articles, even if the arrestee is in a car at the time of arrest. ¶26 Police may not evade Gant by removing an

article from a car before searching it, but this is not because the federal and state constitutions specially protect articles in cars. It is because, under Chimel, the State must justify the warrantless search 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. The distinction does not turn on whether a person is arrested in a car, on the street, or at home, but on the relationship of the

article to the arrestee. See Robinson, 414 U.S. at 220 (search of the person or vehicle occupants); Chimel, 395 U.S. at 753-54 (search of arrestee’s home). Here, if Byrd’s arrest was lawful, the search of her purse was both reasonable and supported by authority of law. CONCLUSION ¶27 The search incident to arrest exception encompasses two distinct rationales.

A search of the arrestee’s immediate area must be justified by concerns for officer safety or evidence preservation, while a search of the arrestee’s person and articles of his or her person is justified by the authority of a lawful arrest. ¶28 We rely on the time of arrest rule and hold that because Byrd’s purse was on her lap at the time of her arrest, it was an

article of her person. If Ely had probable cause to arrest Byrd, his search of her purse was lawful under the Fourth Amendment and

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section 7. We reverse the Court of Appeals and remand for further proceedings in the trial court. Madsen, C.J., and C. Johnson, J.M. Johnson, and González, JJ., concur. The Third Circuit is apparently alone in its belief that Gant applies to searches of an arrestee’s personal articles. See United States v. Shakir, 616 F.3d 315, 318 (3d Cir. 2010). The Ninth Circuit does not agree and reads Shakir narrowly. See United States v. Gordon, 895 F. Supp. 2d 1011, 1018-19 (D. Haw. 2012). Other courts have not taken up Shakir on this point, and we are unable to find additional authority for this view. See State v.

Ellis, 355 S.W.3d 522, 524 (Mo. Ct. App. 2011) (noting the lack of “any reported federal or state appellate opinion that has extended Gant to the search of an arrestee’s personal effects, such as a purse or backpack, that are on the person of an arrestee at the time of the arrest”). The dissent concedes the necessity for this rule but disavows its application to Byrd without offering a competing test. Dissent at 633.

As Justice González notes in his concurrence, the circumstances of Byrd’s arrest raise a question about whether Ely had probable cause to place Byrd under arrest on the word of the driver and thus whether the search of her purse was supported by the authority of a lawful arrest. Byrd raised this issue at the Court of Appeals, but that court did not address it, having found the search invalid under Gant and Valdez. On remand, nothing precludes the trial court from considering Byrd’s challenge. See State v. Stein, 144 Wn.2d 236, 248, 27 P.3d 184 (2001) (allowing consideration of additional arguments on remand).