The State of Washington, Petitioner, v. Antoine Lamont Brock, Respondent, 184 Wash. 2d 148

Johnson, J. ¶1 This case involves whether under Washington State Constitution

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section 7, an officer may search an arrestee’s backpack as a search incident to arrest when the arrestee was wearing the backpack at the moment that he was stopped by police, but not at the time he was arrested several minutes later. When Officer Erik Olson stopped and seized Antoine Brock, he had Brock remove the backpack he was wearing and placed it where Brock could not readily access it. After a period of questioning, the officer arrested Brock and then searched the backpack. As long as 10 minutes may have lapsed between the time Olson separated Brock from his backpack and the arrest.

The trial court denied Brock’s motion to suppress the evidence taken from the backpack. The Court of Appeals reversed. State v. Brock, 182 Wn. App. 680, 330 P.3d 236 (2014), review granted, 181 Wn.2d 1029, 340 P.3d 228 (2015). Under the facts of this case, we hold that the backpack was a part of Brock’s person at the time of arrest and reverse the Court of Appeals, upholding the search as a valid search incident to arrest. Facts ¶2 Early in the morning, at approximately 3 a.m. on May 21, 2008, Officer Olson was patrolling Golden Gardens Park when he noticed the men’s restroom door was open and the lights were on.

The park was closed and had been since 11:30 p.m. As he approached the men’s room, the officer could see a person’s legs inside the stall. Officer Olson waited approximately 10 minutes before Brock emerged wearing baggy clothing and carrying a backpack. ¶3 Olson identified himself as an officer and informed Brock that he was not allowed in the park. Although Olson had probable cause to arrest Brock for trespass at that moment, he did not. Instead, he had Brock remove his backpack and performed a Terry stop and frisk. Olson did not feel a wallet during the frisk.

Brock explained that he did not have any identification but provided Olson with a name, Dorien Halley, and a corresponding birth date and Social Security number. ¶4 Olson directed Brock to follow him to his patrol truck so he could run his name through the Washington database. For safety purposes, Olson carried the backpack and placed it on the passenger seat of his vehicle while Brock stood 12 to 15 feet away on the curb.

Olson reminded Brock he was not under arrest at that time but that he was also not yet free to go. ¶5 Brock indicated that he had a California license instead of a Washington license, so Olson ran the name through both the Washington and California databases. Neither search yielded any results. At that point, Olson read Brock his Miranda rights and arrested Brock for providing false information but explained to Brock that “he wasn’t necessarily going to jail.” Verbatim Report of Proceedings (June 13, 2011) at 56.

Because Brock had been cooperative, Olson did not use handcuffs and instructed Brock just to remain near the curb while he returned to his truck to search the backpack for identification. Olson considered the backpack search “a search of Brock’s person incident to arrest” for providing false information. ¶6 In searching the backpack, Olson discovered a wallet containing two small “baggies” of what appeared to be marijuana and methamphetamine. He also found a Department of Corrections (DOC) inmate identification card displaying Brock’s photograph and identifying him as Antoine L. Brock.

Olson walked back over to Brock, handcuffed him, and put him in the back of his patrol truck. Olson estimated that the entire encounter, from the time of the initial contact to the time he handcuffed Brock, was about 10 minutes. ¶7 Olson then ran Brock’s real name through the database and discovered that Brock had a DOC felony arrest warrant. Once Washington State Patrol confirmed the warrant, Olson had no choice but to take Brock to jail. Before doing so, Olson emptied the contents of the backpack in what he considered an inventory search prior to taking Brock to jail for booking.

Olson explained that for safety reasons, he could not bring the backpack to the jail without first performing a search of the arrestee’s personal effects for weapons or explosives. In his search, Olson discovered numerous checks, credit cards, mail, and more baggies possibly containing narcotics. ¶8 Based on this evidence, the State charged Brock with 10 counts of identity theft in the second degree, 3 counts of forgery, and violation of the Uniform Controlled Substances Act,

chapter 69.50 RCW. Brock moved to suppress the evidence discovered in his backpack, which the trial court denied, concluding that the search was a valid search incident to arrest. Brock agreed to a stipulated facts bench trial and was found guilty on all counts except on one count of identity theft. ¶9 Brock appealed, challenging the trial court’s suppression ruling under

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section 7 of the Washington State Constitution. The State responded that the search was a valid search of Brock’s person. The Court of Appeals reversed Brock’s conviction, agreeing with Brock that it was not a valid search of his person under

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section 7 because Brock did not have actual, exclusive possession of the backpack “immediately preceding” arrest. Brock, 182 Wn. App. at 689. Analysis ¶10

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section 7 of the Washington State Constitution provides for broad privacy protections for individuals and generally prohibits unreasonable police invasions into personal affairs. We presume that a warrant-less search of an individual’s personal item, such as a backpack, violates these protections unless the search falls within “one of the few ‘carefully drawn and jealously guarded exceptions.’” 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)).

One such exception is a search incident to arrest, in which the arresting officer has authority to search the arrestee’s person and his or her personal effects. ¶11 There are two discrete types of searches incident to arrest: (1) a search of the arrestee’s person (including those personal effects immediately associated with his or her person—such as purses, backpacks, or even luggage) and (2) a search of the area within the arrestee’s immediate control.

A valid search of the latter requires justification grounded in either officer safety or evidence preservation— there must be some articulable concern that the arrestee can access the item in order to draw a weapon or destroy evidence. Byrd, 178 Wn.2d at 617 (citing Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)).

The former search does not; in analyzing the search of an arrestee, we utilize the United States Supreme Court’s rationale from the Fourth Amendment to the United States Constitution that “ ‘a search may be made of the person of the arrestee by virtue of the lawful arrest.’” Byrd, 178 Wn.2d at 617 (quoting United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)).

In such cases, we presume that safety and evidence justifications exist when taking those personal items into custody as part of the arrestee’s person. ¶12 The distinction as to whether a particular personal item constitutes part of the arrestee’s person, as opposed to just part of the surrounding area, turns on whether the arrestee had “actual and exclusive possession at or immediately preceding the time of arrest.” Byrd, 178 Wn.2d at 623. This is known as the “time of arrest” rule.

We have previously applied this rule in cases involving an arrestee who was holding the personal item at the precise moment of arrest. But here, because Brock was separated from his backpack several minutes prior to arrest, the issue involves the scope of “immediately preceding arrest.” ¶13 In Byrd, we analyzed this “time of arrest” distinction between items that are part of the arrestee’s “person” and items merely within the arrestee’s immediate control. Byrd involved the validity of a warrantless search of a car passenger’s purse.

At the time of arrest, Byrd held the purse in her lap, but when ordered to step out of the car, she asked to leave the purse in the car. The officers refused and seized her purse as part of the arrest. The purse was removed and searched separate from her person.

We recognized that her physical distance from the bag dispelled any practical concerns that she could have reached the purse to draw a weapon or destroy evidence, but we upheld the search as a search of her “person.” Unlike items in the immediately surrounding area, the officer does not need to articulate any objective safety or evidence preservation concerns before validly searching the item. We said that the officer’s authority to search the purse flowed “from the authority of [the] custodial arrest itself.” Byrd, 178 Wn.2d at 618 (citing Robinson, 414 U.S. at 232). This authority satisfies

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section 7’s requirement that the incursions into private affairs be supported by “‘authority of law.’” Byrd, 178 Wn.2d at 618 (quoting Wash. Const. art. I, § 7). The arrest provides the constitutional authority of law justifying the search. ¶ 14 A second underlying justification for this “part of the person” distinction is that there are presumptive safety and evidence preservation concerns associated with police taking custody of those personal items immediately associated with the arrestee, which will necessarily travel with the arrestee to jail.

We said: 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. . . . 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.

Byrd, 178 Wn.2d at 621. ¶15 Brock conflates the “time of arrest” distinction by arguing that his physical separation from the backpack vitiated any practical safety or evidence preservation concerns associated with the backpack because he could not reach it, and that the United States Supreme Court’s ruling in Gant and our ruling in Valdez require that safety and evidence preservation concerns justify the search incident to arrest.

However, as we recognized in Byrd, neither of the decisions in Gant or Valdez restricts the lawful search of an arrestee’s person; there is no requirement that the arrestee be within the reach of the personal item once it is seized as part of the lawful arrest. We rejected Byrd’s argument that her inability to access her purse affects the analysis. ¶16 We applied this same analysis in State v. Mac-Dicken, 179 Wn.2d 936, 938-39, 319 P.3d 31 (2014), where we upheld the validity of a search of the arrestee’s luggage, even when the luggage was moved a full car length’s away from the arrestee’s reach.

When the personal item is taken into custody as a part of the arrestee’s person, the arrestee’s ability to reach the item during the arrest and search becomes irrelevant. ¶17 Rather, the safety and evidence preservation exigencies that justify this “time of arrest” distinction stem from the safety concerns associated with the officer having to secure those articles of clothing, purses, backpacks, and even luggage, that will travel with the arrestee into custody. Because those items are part of the person, we recognize the practical reality that the officer seizes those items during the arrest.

From that custodial authority flows the officer’s authority to search for weapons, contraband, and destructible evidence. ¶18 In determining the scope of the phrase “immediately preceding,” the Court of Appeals focused on the temporal component—the time between Brock’s exclusive possession and his arrest—and determined that he did not possess the backpack “immediately” before arrest because it sat in the patrol truck for nearly 10 minutes before Brock was arrested.

The court distinguished these facts from other Washington cases where the arrestee’s belongings were separated from the arrestee for a shorter period of time prior to the arrest. State v. Smith, 119 Wn.2d 675, 835 P.2d 1025 (1992); State v. Ellison, 172 Wn. App. 710, 291 P.3d 921 (2013), review denied, 180 Wn.2d 1014, 327 P.3d 55 (2014). ¶19 In Smith, the arrestee’s fanny pack fell from his person when he ran from the officer. The officer managed to catch and arrest Smith and secure him in handcuffs in her patrol car.

The officer then walked back to retrieve the fanny pack and cleaned up strewn bottles around the scene. The officer returned to the patrol car, radioed in that she had custody of Smith, and searched the fanny pack approximately 9 to 17 minutes after the arrest. We held that the subsequent search of the fanny pack was a valid search incident to arrest because the fanny pack was worn by the arrestee moments before arrest and was therefore part of his seized person.

We held that a 17-minute delay is also reasonable “where the delay results solely from the officer’s reasonable actions designed to secure the premises and to protect herself and the public.” Smith, 119 Wn.2d at 683. ¶20 In Ellison, officers responded to a 911 report of an unwanted, violent ex-boyfriend who refused to leave the caller’s yard. When the officers searched her yard, they found the suspect, Ellison, hiding under a mound of blankets covering the patio furniture. He was sitting in a chair with a backpack between his feet. The officer ordered him out of the chair and to lie on the ground on his stomach.

The officer then handcuffed Ellison, questioned him, and ran Ellison’s name through the warrant search system. Once it was confirmed that Ellison had numerous outstanding arrest warrants, he was formally placed under arrest. Although the court did not discuss the precise duration, it is quite possible that Ellison was dispossessed of his backpack several minutes before arrest while the officers ran his name and information through their system.

The Court of Appeals upheld the search as a valid search incident to arrest, acknowledging that the officers were reasonably concerned that the backpack might contain a live firearm and that “leaving it at the scene or transporting it to jail in the trunk of their patrol car presented an unacceptable safety risk.” Ellison, 172 Wn. App. at 722. ¶21 The reviewing courts did not identify the exact duration, but it appears that in both cases at least a few minutes elapsed between separation and arrest.

In this case, the Court of Appeals found the difference between a few minutes and approximately 10 minutes dispositive. In so holding, the court reiterated that the search incident to arrest exception is narrow and that 10 minutes simply cannot similarly be considered “immediately preceding” arrest. ¶22 The Court of Appeals’ analysis misapprehends the purpose of the time of arrest rule. Although we must draw these exceptions to the warrant requirement narrowly, we do not draw them arbitrarily; the exception must track its underlying justification.

Because the search incident to arrest rule recognizes the practicalities of an officer having to secure and transport personal items as part of the arrestee’s person, we draw the line of “immediately preceding” with that focus. The proper inquiry is whether possession so immediately precedes arrest that the item is still functionally a part of the arrestee’s person.

Put simply, 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. ¶23 Under these circumstances, the lapse of time had little practical effect on Brock’s relationship to his backpack. Brock wore the backpack at the very moment he was stopped by Officer Olson. The arrest process began the moment Officer Olson told Brock that although he was not under arrest, he was also not free to leave. The officer himself removed the backpack from Brock as a part of his investigation.

And, having no other place to safely stow it, Brock would have to bring the backpack along with him into custody. Once the arrest process had begun, the passage of time prior to the arrest did not render it any less a part of Brock’s arrested person. ¶24 We hold that when the officer removes the item from the arrestee’s person during a lawful Terry stop and the Terry stop ripens into a lawful arrest, the passage of time does not negate the authority of law justifying the search incident to arrest. We reverse the Court of Appeals.

Madsen, C.J., and Owens, Fairhurst, Stephens, Wiggins, González, and Yu, JJ., concur. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). On appeal before the Court of Appeals, the State also argued in the alternative that the backpack search was a valid inventory search. The State abandoned that argument on appeal before this court. Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (abrogating New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L.

Ed. 2d 768 (1981) and narrowing the scope of the search of a vehicle incident to arrest exception); State v. Valdez, 167 Wn.2d 761, 776, 224 P.3d 751 (2009) (holding that the “search incident to arrest exception, born of the common law, arises from the necessity to provide for officer safety and the preservation of evidence of the crime of arrest, and the application and scope of that exception must be so grounded and so limited’’). Smith was abrogated by Byrd, 178 Wn.2d 611, but only as to its claim to establish a broader rule; we upheld our initial decision that the arrestee’s fanny pack was an

article of his person at the time of arrest. Byrd, 178 Wn.2d at 622-23.