                SUPREME COURT OF MISSOURI
                                           en banc

STATE OF MISSOURI,                                 )
                                                   )
                 Respondent,                       )
                                                   )
v.                                                 )     No. SC94927
                                                   )
DERRICK L. CARRAWELL,                              )
                                                   )
                 Appellant.                        )

        APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
                  The Honorable Steven Russell Ohmer, Judge

                                Opinion issued January 12, 2016

          Derrick Carrawell appeals his conviction of the class C felony of possession of a

controlled substance. § 195.202. 1 A police officer searched a plastic grocery bag that

Carrawell was holding after he was already handcuffed and seated in the police car and

discovered heroin. Carrawell argues the circuit court erred and abused its discretion in

overruling his motion to suppress evidence of the heroin because: (1) the State failed to

show police had probable cause to arrest him for a peace disturbance, making the arrest

unlawful, and (2) even if the arrest was lawful, the subsequent search of his plastic bag

was unlawful. The circuit court's judgment is affirmed.




1
     Statutory citations are to RSMo Supp. 2013.
                            Factual and Procedural History

       In April 2012, four City of St. Louis police officers went to investigate complaints

of increased gang activity in a particular neighborhood. While the officers were speaking

with several neighborhood residents outside an apartment building, Officer Curtis

Burgdorf noticed a vehicle pull up nearby with the driver (Carrawell) staring at the

officers for about 30 seconds before finally parking across the street. Carrawell then

stepped out of the vehicle and, while staring at Officer Burgdorf, grabbed his crotch, spit

in the officers' direction, and said, "What the fuck are you looking at, bitch?" Carrawell

then went around to the passenger-side door of the vehicle, removed a white plastic

grocery bag, and continued to utter vulgarities towards the officers.

       Noticing that Carrawell's language was bothering the group of neighborhood

residents (which included a young girl), Officer Burgdorf approached Carrawell and

notified him he was under arrest for peace disturbance. Carrawell, with plastic bag in

hand, continued to walk away from the officer. Officer Burgdorf followed and, as

Carrawell attempted to open an apartment door, grabbed ahold of Carrawell. A struggle

ensued as Officer Burgdorf attempted to handcuff Carrawell and repeatedly asked him to

drop the plastic bag. Eventually, Officer Burgdorf was able to rip the plastic bag from

Carrawell's hands and it fell to the ground, producing a "breaking" sound. Officer

Burgdorf then completed the handcuffing process, picked up the bag, and escorted

Carrawell to the police car. Another struggle ensued while attempting to place Carrawell

in the police car, at which point Officer Burgdorf set the plastic bag on top of the car's

trunk. After securing Carrawell in the police car, Officer Burgdorf—for the first time—
looked into the plastic bag. 2 Inside he discovered a broken ceramic plate and a smaller

plastic bag containing a tan powder that Officer Burgdorf believed to be, and which was

later confirmed to be, heroin.

       Carrawell was charged with the class C felony of drug possession. Prior to trial,

he filed a motion to suppress evidence of the heroin arguing that neither the arrest nor

search of his plastic bag was lawful. The circuit court held a hearing on the motion and

subsequently overruled it.       The circuit court also overruled Carrawell's continuing

objection, based on the reasons set forth in the motion to suppress, during trial. Carrawell

was convicted and sentenced to 12 years' imprisonment. He then filed a motion for a new

trial, which the circuit court also overruled. Carrawell now appeals, contesting the circuit

court's ruling on his motion to suppress.

                                         Standard of Review

       "At a hearing on a motion to suppress, the state bears both the burden of producing

evidence and the risk of nonpersuasion to show by a preponderance of the evidence that

the motion to suppress should be overruled." State v. Grayson, 336 S.W.3d 138, 142

(Mo. banc 2011) (internal quotations omitted).            "When reviewing the trial court's

overruling of a motion to suppress, this Court considers the evidence presented at both



2
   In its discussion of the facts, the concurring opinion asserts that Officer Burgdorf could not
"reasonably bring [the bag] into the patrol car without knowing what was in it and (given the
breaking sound when the bag was first dropped) what condition those contents were in." The
record does not support this conclusion. At trial, Officer Burgdorf testified that he "overheard a
breaking sound" when the bag fell to the ground. He further testified, "With his reluctance to let
go of it or show me what was in there, I was concerned there may have been a weapon in there."
There was no suggestion by Officer Burgdorf that he had any reason to believe the contents of
the bag would have harmed the occupants of the patrol car while remaining in the bag.
                                                3
the suppression hearing and at trial to determine whether sufficient evidence exists in the

record to support the trial court's ruling." State v. Pike, 162 S.W.3d 464, 472 (Mo. banc

2005). "The Court defers to the trial court's determination of credibility and factual

findings, inquiring only whether the decision is supported by substantial evidence, and it

will be reversed only if clearly erroneous." State v. Goff, 129 S.W.3d 857, 862 (Mo. banc

2004) (internal quotations omitted). "By contrast, legal determinations of reasonable

suspicion and probable cause are reviewed de novo." Grayson, 336 S.W.3d at 142.

                                           Analysis

       Carrawell argues evidence of the heroin in his possession should have been

suppressed because his arrest and the search of his plastic bag were unlawful under the

Fourth Amendment to the United States Constitution and article I, section 15 of the

Missouri Constitution, both of which protect against unreasonable searches and seizures. 3

"When evidence is obtained in violation of the Fourth Amendment, the judicially

developed exclusionary rule usually precludes its use in a criminal proceeding against the

victim of the illegal search and seizure." Illinois v. Krull, 480 U.S. 340, 347 (1987).

Carrawell asserts Officer Burgdorf did not have probable cause to arrest him for peace

disturbance because Carrawell did not do anything calculated to provoke a "breach of the

peace." He also asserts that the State failed to offer into evidence the city's peace

disturbance ordinance under which Officer Burgdorf claimed to have arrested Carrawell.


3
   This Court interprets the Fourth Amendment of the United States Constitution and article I,
section 15 of the Missouri Constitution to provide "the same guarantees against unreasonable
search and seizures; thus, the same analysis applies to cases under the Missouri Constitution as
under the United States Constitution." State v. Oliver, 293 S.W.3d 437, 442 (Mo. banc 2009).
                                               4
He argues that, because a court cannot simply take judicial notice of a municipal

ordinance, there was no definition of "peace disturbance" before the circuit court by

which it could determine whether there was probable cause to arrest him for the crime.

Carrawell also argues that, even if the arrest was lawful, the search of his plastic bag was

unlawful because Carrawell had not abandoned the plastic bag and the search did not

qualify as a search incident to arrest. He further asserts that the search could not be

justified under the inventory-search exception because the State failed to produce

evidence that the police department had standardized criteria or established routine for

opening closed containers in an inventory search.

                            Carrawell's Arrest Was Lawful

       "An arrest with or without a warrant requires probable cause, which simply means

a knowledge of facts and circumstances sufficient for a prudent person to believe the

suspect is committing or has committed [an] offense." State v. Heitman, 589 S.W.2d

249, 253 (Mo. banc 1979). Although Carrawell focuses on Officer Burgdorf's testimony

that he arrested Carrawell for violating the city's peace disturbance ordinance, this Court

need not determine whether there was probable cause to arrest Carrawell for peace

disturbance. This is because there was certainly probable cause to arrest Carrawell for

resisting arrest. See § 575.150.1(1) (stating that a person commits the crime of resisting

arrest when the person knows or reasonably should know that a police officer is

attempting to arrest the person and the person resists the arrest "by using or threatening

the use of violence or physical force or by fleeing from such officer").



                                             5
       Here, there was testimony that when Officer Burgdorf told Carrawell he was under

arrest, Carrawell kept walking away, and that when Officer Burgdorf caught up to

Carrawell, Carrawell continued to try to pull away from the officer's grasp. Notably, it is

no defense to resisting arrest "that the law enforcement officer was acting unlawfully in

making the arrest." Section 575.150.4. In determining whether Carrawell committed the

crime of resisting arrest, therefore, there is no need to determine whether Officer

Burgdorf could have lawfully arrested Carrawell for peace disturbance under the facts

presented. For such purpose, it only matters that Carrawell indeed resisted an arrest,

lawful or not.    Because the evidence presented shows there was probable cause to

conclude Carrawell resisted arrest, an arrest of Carrawell was lawful. 4

        The Search of Carrawell's Bag Was Not a Lawful Search Incident to Arrest,
                    But the Exclusionary Rule Does Not Apply

       Because Carrawell's arrest was lawful, the next question is whether the search of

his plastic bag was lawful. Warrantless searches are per se unreasonable under the

Fourth Amendment, unless an "established and well-delineated" exception applies. Katz

v. United States, 389 U.S. 347, 357 (1967). One such exception is a search incident to a

lawful arrest. United States v. Robinson, 414 U.S. 218, 224 (1973). Incident to arrest,

4
   This conclusion does not depend on which crime—peace disturbance or resisting arrest—
Officer Burgdorf subjectively intended to arrest Carrawell. An officer's "subjective reason for
making the arrest need not be the criminal offense as to which the known facts provide probable
cause." Devenpeck v. Alford, 543 U.S. 146, 153 (2004). That is, "the fact the officer does not
have the state of mind which is hypothecated by the reasons which provide the legal justification
for the officer's action does not invalidate the action taken as long as the circumstances, viewed
objectively, justify that action." Id. Although Officer Burgdorf may have intended to arrest
Carrawell for peace disturbance, the circumstances that then arose, viewed objectively, justified
an arrest based on Carrawell committing the crime of resisting arrest.


                                                6
officers may lawfully search "the arrestee's person and the area 'within his immediate

control'—construing that phrase to mean the area from within which he might gain

possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752,

763 (1969) (emphasis added).        Here, although there was a lawful arrest, Officer

Burgdorf's first search of Carrawell's plastic bag occurred outside the police car, after

Carrawell had already been handcuffed and placed into the back of the police car. Thus,

the plastic bag was not within Carrawell's immediate control at the time of Officer

Burgdorf's search.   However, the court of appeals has previously indicated that an

arrestee's personal effects (e.g., a purse or backpack) may be searched even when they are

not within the immediate control of the arrestee because such a search qualifies as a

search of the person—i.e., the personal effects are part of the person. See, e.g., State v.

Ellis, 355 S.W.3d 522, 524 (Mo. App. 2011); State v. Rattler, 639 S.W.2d 277, 278 (Mo.

App. 1982). This reasoning is based on a misunderstanding of law and should no longer

be followed.

       In United States v. Chadwick, the Supreme Court of the United States made clear

the reasoning for the search-incident-to-arrest exception:

       The reasons justifying search in a custodial arrest are quite different. When
       a custodial arrest is made, there is always some danger that the person
       arrested may seek to use a weapon, or that evidence may be concealed or
       destroyed. To safeguard himself and others, and to prevent the loss of
       evidence, it has been held reasonable for the arresting officer to conduct a
       prompt, warrantless search of the arrestee's person and the area within his
       immediate control. . . .

433 U.S. 1, 14 (1977) (internal quotations omitted). The Supreme Court then announced

the general rule:

                                             7
       Once law enforcement officers have reduced luggage or other personal
       property not immediately associated with the person of the arrestee to their
       exclusive control, and there is no longer any danger that the arrestee might
       gain access to the property to seize a weapon or destroy evidence, a search
       of that property is no longer an incident of the arrest.

Id. at 15. This principle was reaffirmed by the Supreme Court in Arizona v. Gant: "If

there is no possibility that an arrestee could reach into the area that law enforcement

officers seek to search, both justifications for the search-incident-to-arrest exception are

absent and the rule does not apply." 556 U.S. 332, 339 (2009). In Gant, the Supreme

Court held that police may lawfully search a vehicle incident to arrest in two situations:

(1) "if the arrestee is within reaching distance of the passenger compartment at the time

of the search" or (2) "it is reasonable to believe the vehicle contains evidence of the

offense of arrest." Id. at 351. Although Gant involved the search of a vehicle, the

Supreme Court's holding is only unique to vehicles for the second category of situations.

The first category is just a reiteration of Chimel and Chadwick—that general rule applies

to all searches incident to arrest, vehicle or not. 5 That is, if the item searched is not

within the arrestee's reaching distance (or "immediate control") at the time of the search,

the justifications for a search incident to arrest are absent and there is no valid search

incident to arrest. 6


5
   Like the search of Carrawell's plastic bag, the unlawful search in Gant took place after the
arrestee was handcuffed and placed in the back of a police car. 556 U.S. at 336.
6
   Despite what some cases may suggest, Chadwick was not abrogated by the Supreme Court's
decision in California v. Acevedo, 500 U.S. 565 (1991). Chadwick held that police need a
warrant to search a container, unless an exception applies, like search incident to arrest—the
exception addressed in Chadwick. 433 U.S. at 15. Acevedo, in response to courts' confusion
concerning containers found within vehicles searched under the automobile exception,
essentially added an exception that may apply to a container, holding that "police may search an
                                               8
       A major source of the court of appeals' misunderstanding regarding this well-

established rule appears to be based on language taken out of context from United States

v. Edwards, in which the Supreme Court stated, "It is also plain that searches and seizures

that could be made on the spot at the time of arrest may legally be conducted later when

the accused arrives at the place of detention." 415 U.S. 800, 803 (1974). This broad

statement that the court of appeals has relied upon was only dicta. The holding of

Edwards was much narrower: the clothes that this particular arrestee was wearing at the

time of arrest could be searched the next day at the station house because the police could


automobile and the containers within it where they have probable cause to believe contraband or
evidence is contained." 500 U.S. at 580. Acevedo did not touch upon Chadwick's analysis of
searches incident to arrest, but only expanded the automobile exception to include probable
cause analysis for containers found therein. See Acevedo, 500 U.S. at 579 ("We conclude that it
is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant
requirement for closed containers . . . .") (emphasis added). Therefore, the two holdings co-exist.
A container may be searched in the vehicle context applying the Acevedo rule, or, if within an
arrestee's immediate control, the Chadwick rule. A container in the non-vehicle context may be
searched applying the Chadwick rule.

Similarly, some cases suggested Chimel, the basis for Chadwick's rule, was abrogated by the
Supreme Court's decision in New York v. Belton, 453 U.S. 454 (1981). See Davis v. United
States, 131 S.Ct. 2419, 2424 (2011) ("Numerous courts read the [Belton] decision to authorize
automobile searches incident to arrests of recent occupants, regardless of whether the arrestee in
any particular case was within reaching distance of the vehicle at the time of the search."). The
Supreme Court dispelled this notion in Gant:

       To read Belton as authorizing a vehicle search incident to every recent occupant's
       arrest would thus untether the rule from the justifications underlying the Chimel
       exception—a result clearly incompatible with our statement in Belton that it "in
       no way alters the fundamental principles established in the Chimel case regarding
       the basic scope of searches incident to lawful custodial arrests."

556 U.S. at 343.


                                                9
not conduct the search contemporaneous with the arrest as the arrestee was wearing the

clothes and the police did not have a change of clothes for him. Id. at 805. This was

sound logic because "the person" of the arrestee in Edwards could not be separated from

the arrestee's clothes at the time of the arrest, and the justification of preventing

destruction of evidence (paint chips embedded in the clothes) remained the next day. In

light of Chimel, Chadwick, and Gant, though, the Supreme Court's decision in Edwards

should not be read to authorize the search of all personal effects incident to arrest

regardless of whether the item searched is still within the immediate control of the

arrestee at the time of the search. See United States v. Monclavo-Cruz, 662 F.2d 1285,

1289–90 (9th Cir. 1981) ("[T]his broad statement in Edwards, in contrast to its holding,

has been circumscribed by Chadwick . . . [i]n light of these principles, we confine the

Edwards exception to the person and clothing of an arrestee.").

          Therefore, the Edwards exception to the general rule requiring the item searched

to be within the arrestee's immediate control applies only to items that are so intertwined

with the arrestee's person that they cannot be separated from the person at the time of

arrest.     The language in Chadwick—"or other personal property not immediately

associated with the person"—appears to merely be a nod to this rare Edwards exception

where the personal property searched is not separable from the person. See Chadwick,

433 U.S. at 15 (holding that luggage that was not within arrestee's immediate control

could not be searched incident to arrest). Unlike the clothing in Edwards, the plastic bag

in this case was easily separable from the arrestee's person. Indeed, the Supreme Court of

the United States has made no distinction between the luggage in Chadwick that could

                                             10
not be searched and other personal effects removed from a person, such as purses or

shopping bags. Rather, the Supreme Court has lumped all of these items in the same

category of "containers" that may be within an arrestee's immediate control, and therefore

subject to a search incident to arrest. See New York v. Belton, 453 U.S. 454, 460 n.4

(1981) (noting that "containers" that may be within an arrestee's reach include "luggage,

boxes, bags, clothing, and the like"); see also State v. Perry, 499 S.W.2d 473, 475 (Mo.

1973) ("[T]he officers had probable cause to make an arrest and in connection therewith

to conduct a search of the person of appellant and the area within her immediate

control (the purse).") (emphasis added). It is not that these items may be searched

because they are part of the person; rather, they may be searched because they are within

the arrestee's immediate control. When that fact is no longer true, they may not be

searched incident to arrest because the justifications for conducting such a search no

longer persist. Gant, 556 U.S. at 339; Chadwick, 433 U.S. at 15. The court of appeals'

distinction for purses and other similar personal effects is not consistent with Supreme

Court precedent.

      The origin of this purse exception in the court of appeals appears to be State v.

Woods, 637 S.W.2d 113 (Mo. App. 1982). In Woods, the court of appeals held that a

woman's purse could be searched after she had already been taken to the police station

because the purse "was not so clearly distant from her at the police station as to make it

impossible for her to gain access to it." Id. at 116. The court of appeals then went on to

state, "We further note that a woman's purse is, like the arrestee's clothes in Edwards,

more immediately associated with the person of the accused than is other personal

                                           11
property, such as luggage or an attache case." Id. For support, the court of appeals cited

United States v. Berry, which stated, "[U]nlike a purse that might be characterized as

'immediately associated with the person of the arrestee' because it is carried with the

person at all times, the attache case here was more like luggage . . . ." 560 F.2d 861, 864

(7th Cir. 1977), vacated by United States v. Berry, 571 F.2d 2 (7th Cir. 1978). Not only

was the purse conclusion dicta, but the Berry court failed to compare a purse with the

clothing in Edwards in terms of their differing qualities of separability from the person—

the very quality that made the clothing in Edwards "immediately associated with the

person." The Berry opinion was also later vacated. United States v. Berry, 571 F.2d 2

(7th Cir. 1978).

       The court of appeals has also relied on United States v. Graham, 638 F.2d 1111

(7th Cir. 1981), in support of its purse exception. See Ellis, 355 S.W.3d at 525. The

concurring opinion relies on Graham as well, but the Graham court held that "a shoulder

purse carried by a person at the time he is stopped lies within the scope of a warrant

authorizing the search of his person." 638 F.2d at 1114 (emphasis added). It is important

to note that the Graham court did not hold a purse is part of the person for purposes of a

search incident to arrest. In fact, it did the opposite and distinguished a search incident to

arrest from a search pursuant to a warrant, noting that "defendant is also mistaken in his

contention that the rationale used to define the scope of a search incident to an arrest is

equally applicable in defining the scope of a search of the person authorized by a

warrant." Id. The Graham court then discussed an Illinois case that held "once the

defendant was handcuffed and seated in the police squad car, and his purse was in the

                                             12
possession of the police, the reasons justifying a search incident to his arrest no longer

existed with respect to the purse." Id. Thus, any reliance on Graham by the concurring

opinion or court of appeals to say a purse is part of the person for a search incident to

arrest misconstrues that case. If anything, Graham recognized the purse was not part of

the person with respect to a search incident to arrest. 7

       The concurring opinion also suggests that under U.S. v. Robinson, 414 U.S. 218

(1973), there is a "time of arrest" rule, meaning any personal effect in the arrestee's actual

possession at the time of the arrest may be searched, regardless of whether the item is

within the arrestee's immediate control at the time of the search, because a search of the

arrestee's person (including personal effects) requires "'no additional justification' beyond

the validity of the custodial arrest." This is not Robinson's holding. The concurring

opinion seizes on Robinson's "no additional justification" language, but fails to provide

context. In Robinson, the Supreme Court held:

       A police officer's determination as to how and where to search the person
       of a suspect whom he has arrested is necessarily a quick ad hoc judgment
       which the Fourth Amendment does not require to be broken down in each
       instance into an analysis of each step in the search. The authority to search
       the person incident to a lawful custodial arrest, while based upon the need
       to disarm and to discover evidence, 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
7
   While the Graham court stated that the search of the purse in that particular case would have
also fallen within the scope of a search incident to arrest, the court made this determination—not
because the purse was part of the person—but because it rejected the argument that the purse was
within the "exclusive control" of the police when police searched the purse in the presence of an
unsecured arrestee. 638 F.2d at 1112–1114. In determining such, the Graham court cited United
States v. Garcia, 605 F.2d 349 (7th Cir. 1979). Graham, 638 F.2d at 1113–114. The concurring
opinion also curiously cites Garcia for support, although the search in Garcia occurred while the
luggage was "within one foot" of an arrestee who was not handcuffed and, therefore, "the
luggage continued to remain within her immediate reach." 605 F.2d at 352, 356.
                                               13
       suspect. A custodial arrest of a suspect based on probable cause is a
       reasonable intrusion under the Fourth Amendment; that intrusion being
       lawful, a search incident to the arrest requires no additional justification.

Id. at 235 (emphasis added).        What the Supreme Court meant by "no additional

justification" was that police officers need no prerequisite objective level of suspicion

(e.g., probable cause) regarding the search itself—i.e., the officers need no reason to

believe a person has, or an item contains, weapons or evidence in order to ensure their

safety and the preservation of evidence in the flurry that is a custodial arrest. Id. Such

objective level of suspicion would be an unnecessary "additional justification" to the two

built-in justifications, officer safety and preventing destruction of evidence, that are

already present in a search incident to arrest. Id.

       Notably, the concurring opinion recognizes that these two justifications underlie a

search incident to arrest, even one it would call a search under the "time of arrest" rule:

       Accordingly, when police seize an arrestee, they necessarily also seize the
       arrestee's clothing and personal effects in the arrestee's actual possession,
       all of which may contain a weapon or evidence. . . . The time of arrest
       rule recognizes that the same exigencies that justify searching an arrestee's
       person under Robinson also justify searching the arrestee's clothes and other
       items in the arrestee's actual possession.

(emphasis added). These "same exigencies," however, cannot support a "time of arrest"

rule. The two exigencies, or justifications, hinge on the spatial location of an item to an

arrestee at the time of the search, not at the time of arrest. That is, even if the item to be

searched was within the arrestee's immediate control (or "on the person") at the time of

arrest, police need not be concerned with the arrestee inflicting harm with a weapon or

destroying evidence when the hypothetical weapon or evidence is contained in an item no


                                             14
longer within the arrestee's immediate control at the time of the search. The fact that the

item was once within the arrestee's immediate control at the time of arrest has no impact

on whether the justifications, or "exigencies," still persist at the time of the search.

       The Supreme Court's clarification of Belton's holding in Gant should have

dispelled any notion of a "time of arrest" rule:

       [Belton] has been widely understood to allow a vehicle search incident to
       the arrest of a recent occupant even if there is no possibility the arrestee
       could gain access to the vehicle at the time of the search. This reading may
       be attributable to Justice Brennan's dissent in Belton, in which he
       characterized the Court's holding as resting on the "fiction . . . that the
       interior of a car is always within the immediate control of an arrestee who
       has recently been in the car." Under the majority's approach, he argued,
       "the result would presumably be the same even if [the officer] had
       handcuffed Belton and his companions in the patrol car" before conducting
       the search.

       Since we decided Belton, Courts of Appeals have given different answers to
       the question whether a vehicle must be within an arrestee's reach to justify a
       vehicle search incident to arrest, but Justice Brennan's reading of the
       Court's opinion has predominated. As Justice O'Connor observed, "lower
       court decisions seem now to treat the ability to search a vehicle incident to
       the arrest of a recent occupant as a police entitlement rather than as an
       exception justified by the twin rationales of Chimel." . . . Indeed, some
       courts have upheld searches under Belton "even when . . . the handcuffed
       arrestee had already left the scene."

       Under this broad reading of Belton, a vehicle search would be authorized
       incident to every arrest of a recent occupant notwithstanding that in most
       cases the vehicle's passenger compartment will not be within the arrestee's
       reach at the time of the search. To read Belton as authorizing a vehicle
       search incident to every recent occupant's arrest would thus untether the
       rule from the justifications underlying the Chimel exception—a result
       clearly incompatible with our statement in Belton that it "in no way alters
       the fundamental principles established in the Chimel case regarding the
       basic scope of searches incident to lawful custodial arrests." Accordingly,
       we reject this reading of Belton and hold that the Chimel rationale
       authorizes police to search a vehicle incident to a recent occupant's arrest


                                              15
       only when the arrestee is unsecured and within reaching distance of the
       passenger compartment at the time of the search.

Gant, 556 U.S. at 341–43 (internal citations omitted). Like the passenger compartment

of an arrestee's vehicle, an arrestee's personal effects may no longer be within the

arrestee's immediate control at the time of the search, negating the Chimel rationales for a

search incident to arrest. The Chimel rationales are the only rationales for the search-

incident-to-arrest exception. See, e.g., Riley v. California, 134 S.Ct. 2473, 2484 (2014)

("Gant, like Robinson, recognized that the Chimel concerns for officer safety and

evidence preservation underlie the search incident to arrest exception."). Contrary to the

concurring opinion's assertion, there simply is no separate rationale added by Robinson,

which recognized that allowing searches incident to arrest is grounded solely in the need

to protect officer safety and prevent destruction of evidence. See id.; 414 U.S. at 234–35.

As such, there is no Supreme Court authority for the concurring opinion's "time of arrest"

rule. This "time of arrest" rule is just as misguided as the flawed readings of Belton that

the Supreme Court rejected—it "untether[s] the [search incident to arrest] rule from the

justifications underlying the Chimel exception" and treats the ability to search an

arrestee's personal effects "as a police entitlement rather than as an exception justified by

the twin rationales of Chimel." 8 See Gant, 556 U.S. at 342–43 (internal quotations

omitted).


8
  The influence of the now-rejected broad reading of Belton on the concurring opinion's "time of
arrest" rule is especially evident in the concurring opinion's reliance on United States v. Fleming,
677 F.2d 602 (7th Cir. 1982), and Curd v. City Court of Judsonia, Ark., 141 F.3d 839 (8th Cir.
1998). Although the Fleming court upheld the search of a bag after the arrestee had been
handcuffed and removed from the immediate vicinity, it did so by analogizing the search to the
                                                16
       While there is no need for a "case-by-case adjudication" in every search incident

to arrest concerning whether an officer had reason to believe an arrestee's personal effect

contained a weapon or evidence, there certainly is a need for a case-by-case adjudication

when the underlying justifications for searching that personal effect no longer persist

because the item was no longer within the arrestee's immediate control. This principle

was recently illuminated particularly well by the Supreme Court's discussion in Riley

concerning whether officers could search a cell phone that was seized and not within the

arrestee's immediate control:

       The United States and California both suggest that a search of cell phone
       data might help ensure officer safety in more indirect ways, for example by
       alerting officers that confederates of the arrestee are headed to the
       scene. . . .   The proposed consideration would also represent a
       broadening of Chimel's concern that an arrestee himself might grab a
       weapon and use it against an officer to "resist arrest or effect his
       escape." And any such threats from outside the arrest scene do not "lurk[]
       in all custodial arrests." Accordingly, the interest in protecting officer
       safety does not justify dispensing with the warrant requirement across the
       board. To the extent dangers to arresting officers may be implicated in a
       particular way in a particular case, they are better addressed through
       consideration of case-specific exceptions to the warrant requirement, such
       as the one for exigent circumstances. . . . And once law enforcement
       officers have secured a cell phone, there is no longer any risk that the
       arrestee himself will be able to delete incriminating data from the
       phone. . . . To the extent that law enforcement still has specific concerns
       about the potential loss of evidence in a particular case . . . . they may be
       able to rely on exigent circumstances to search the phone immediately.


misinterpreted holding of Belton. See Fleming¸ 677 F.2d at 605, 607 (noting that "when the
occupant of an automobile is arrested, the entire passenger compartment of the car constitutes his
'grabbing area' and can be searched as an incident of the arrest," and rejecting the argument that
the arrestee "had no realistic chance to grab anything and therefore the need for a Chimel search
no longer existed"). In Curd, the Eighth Circuit upheld the search of a purse after the arrestee
had already been taken to a detention center, citing to Belton for the proposition that "[i]t matters
not whether Curd was capable of reaching the purse at the time of the search." Curd, 141 F.3d at
841, 842 n.9.
                                                 17
134 S.Ct. at 2485–87 (internal citations omitted) (emphasis added). Likewise, with any

other personal effect, officers may not conduct a search incident to arrest when the

arrestee himself cannot obtain a weapon or evidence from the personal effect; rather, any

search of that personal effect must be grounded in another exception to the warrant

requirement, such as an inventory search or exigent circumstances. See id.

       Relevant to exigent circumstances, the concurring opinion also appears to conflate

the search-incident-to-arrest exception with the exigent-circumstances exception,

implicitly suggesting that Officer Burgdorf's search was justified because Officer

Burgdorf testified that he was concerned the bag may have contained a weapon and

"Officer Burgdorf looked into the bag because it would have been unreasonable to leave

it behind and unsafe to bring it into the police vehicle without knowing the nature and

condition of the contents."     While the concurring opinion does not suggest the

surrounding circumstances actually amounted to probable cause to believe the bag

contained a weapon, concerns about the bag's contents go toward the officer's objective

level of suspicion. As discussed above, level of suspicion, e.g., probable cause, plays no

role in a search incident to arrest. Robinson, 414 U.S. at 235. It does, however, factor

into the exigent-circumstances exception. See, e.g., Florida v. Royer, 460 U.S. 491, 497

(1983) ("[I]t is unquestioned that without a warrant to search Royer's luggage and in the

absence of probable cause and exigent circumstances, the validity of the search

depended on Royer's purported consent.") (emphasis added); Chambers v. Maroney, 399

U.S. 42, 51 (1970) ("Only in exigent circumstances will the judgment of the police as to


                                           18
probable cause serve as a sufficient authorization for a search."). The state does not

argue, and the record does not support the conclusion, that a warrantless search of

Carrawell's bag was justified by exigent circumstances supported by probable cause.

       Here, Carrawell was handcuffed and locked in the back of a police car at the time

Officer Burgdorf searched the plastic bag. It matters not whether this bag was more akin

to luggage or more akin to a purse. Neither is part of the person. It matters only whether

the bag was within Carrawell's immediate control. Because it was not, there was not a

valid search incident to arrest. E.g., United States v. Matthews, 532 Fed. Appx. 211, 218

(3d Cir. 2013); United States v. Maddox, 614 F.3d 1046, 1049 (9th Cir. 2010); People v.

Redmond, 390 N.E.2d 1364, 1374 (Ill. App. 1979). The state has not demonstrated any

other exception to the warrant requirement applies. 9




9
   An exception for inevitable discovery via an inventory search—i.e, the police would have
inevitably discovered the heroin through a lawful inventory search at the police station—does
not apply here. Under the inevitable discovery doctrine,

       [I]llegally seized evidence may be admitted if the State proves by a
       preponderance of the evidence: (1) that certain standard, proper and predictable
       procedures of the local police department would have been utilized, and (2) those
       procedures inevitably would have led to discovery of the challenged evidence
       through the State's pursuit of a substantial, alternative line of investigation at the
       time of the constitutional violation. The inevitable discovery analysis cannot
       involve speculation and must focus on demonstrated historical facts capable of
       ready verification or impeachment.

State v. Rutter, 93 S.W.3d 714, 726 (Mo. banc 2002) (internal citations omitted). Although there
was testimony that the police department here routinely conducts inventory searches, there was
no indication that the police department had a standard procedure of always taking arrestees (or
those arrested for peace disturbance or resisting arrest) to the police station, where they would be
subject to an inventory search. Thus, to apply the inevitable discovery doctrine here would
impermissibly involve speculation, as there is no evidence Carrawell would have been subjected
to an inventory search absent the discovery of heroin.
                                                19
       That the search here was unlawful is not dispositive, however. "[W]hen an officer

conducts a search incident to arrest in 'objectively reasonable reliance' on binding

appellate precedent that is later overturned, the exclusionary rule does not suppress the

evidence obtained as a result of that search." State v. Johnson, 354 S.W.3d 627, 630

(Mo. banc 2011). "[T]he exclusionary rule is triggered only when police practices are

'deliberate enough to yield meaningful deterrence, and culpable enough to be worth the

price paid by the justice system.'" Id. at 633 (quoting Davis v. United States, 131 S.Ct.

2419, 2428 (2011)). "[O]fficers act in good faith when they objectively rely on binding

directives from the judiciary and the legislature even though these directives may be later

overturned." Id. at 634. At the time of Officer Burgdorf's search, there was court of

appeals precedent authorizing officers to search an arrestee's personal effects as a search

incident to arrest, even if such items were not within the arrestee's immediate control.

See, e.g., Ellis, 355 S.W.3d at 524–25. Although such searches should no longer be

deemed lawful, the exclusionary rule will not apply to this case. Accordingly, the circuit

court did not err or abuse its discretion in overruling Carrawell's motion to suppress

evidence of the heroin discovered in Carrawell's plastic bag.

                                    Conclusion

       The warrantless arrest of Carrawell was lawful because there was probable cause

to conclude Carrawell committed the crime of resisting arrest. The warrantless search of

Carrawell's plastic bag was not a lawful search incident to arrest because the plastic bag

was not within Carrawell's immediate control at the time of the search.          However,



                                            20
because there was court of appeals authority for conducting such a search, the

exclusionary rule does not apply to this case. The judgment is affirmed.




                                                          Zel M. Fischer, Judge




Stith, and Draper, JJ., concur;
Wilson, J., concurs in separate opinion filed;
Breckenridge, C.J., and Russell, J., concur in opinion of Wilson, J.;
Teitelman, J., concurs in part and dissents in part in separate opinion filed.




                                             21
            SUPREME COURT OF MISSOURI
                                        en banc

STATE OF MISSOURI,                                )
                                                  )
              Respondent,                         )
                                                  )
v.                                                )       No. SC94927
                                                  )
DERRICK L. CARRAWELL,                             )
                                                  )
              Appellant.                          )

                               CONCURRING OPINION

       I concur with the result reached in the principal opinion, and I agree that

Carrawell’s arrest was lawful. However, I write separately because the search of

Carrawell’s bag was a lawful search incident to arrest.

       A full recitation of the facts is necessary for a proper analysis in this case. Officer

Burgdorf and three other police officers were present in a neighborhood in the City of St.

Louis talking with residents when the officers first came in contact with Carrawell. Upon

exiting his car, Carrawell began yelling obscenities and making lewd gestures toward the

officers. While continuing this outburst, Carrawell leaned back into his car and removed

a white plastic grocery bag through the car window. Because the bag was opaque,

Officer Burgdorf testified he could not see what was inside it but stated that he was

concerned Carrawell was removing anything from his vehicle in such an agitated state.
       Officer Burgdorf noticed that Carrawell was upsetting the residents on the street,

so he crossed the street toward Carrawell and notified him that he was under arrest for

peace disturbance. Even though Carrawell was aware that he was under arrest, he walked

away from Officer Burgdorf and moved toward the gated entrance to his apartment

building.

       Because the gate was locked, Carrawell’s daughter let him into the gated area from

the inside. Officer Burgdorf followed Carrawell through the gate, but the gate closed

before the other officers could enter and assist Officer Burgdorf with the arrest. After

stepping through the gate, Officer Burgdorf again advised Carrawell that he was under

arrest. Carrawell still refused to cooperate and continued to walk away. Officer

Burgdorf then grabbed Carrawell by his arm. Carrawell resisted and pulled free from

Officer Burgdorf’s grasp. Acting alone, and separated from the other officers by a locked

gate, Officer Burgdorf grabbed Carrawell again and struggled to move him toward the

gate. Throughout this altercation, Carrawell maintained his grip on the bag.

       Once Officer Burgdorf maneuvered Carrawell toward the gate, the officers outside

the gate were able to help restrain Carrawell by grabbing him through the openings in the

gate. The officers succeeded in handcuffing Carrawell’s left wrist through the gate but

could not gain control over Carrawell’s right arm because he continued to clutch the bag

in his right hand. Carrawell refused to drop the bag even though the officers ordered him

several times to do so. When Carrawell failed to comply with the officers’ requests,

Officer Burgdorf pulled the bag from Carrawell’s hand and dropped it to the ground. As

the bag hit the ground, the officers heard the sound of something breaking. No longer

                                             2
impeded by Carrawell’s grip on the bag, the officers placed Carrawell in handcuffs.

Officer Burgdorf reached down to pick up the bag as he began to move Carrawell back

through the gate and toward the officers’ vehicles.

       Despite being handcuffed, Carrawell continued to struggle as he was moved to the

police vehicle. When Officer Burgdorf got Carrawell to the vehicle, Carrawell resisted

being placed into the vehicle. Needing both hands to control Carrawell, Office Burgdorf

placed Carrawell’s bag on the trunk of the car and, with the help of the other officers, was

able to put Carrawell into the vehicle. Immediately after seating Carrawell in the vehicle,

Officer Burgdorf turned back to Carrawell’s grocery bag. Officer Burgdorf testified that

he was concerned the bag may contain a weapon because of the way Carrawell had

grabbed the bag from his car and refused to let go of it despite being ordered to do so

several times. Moreover, Officer Burgdorf could not reasonably leave the bag on the

ground at the scene of the arrest for fear it contained a weapon or other dangerous

material. Nor could he reasonably bring it into the patrol car without knowing what was

in it and (given the breaking sound when the bag was first dropped) what condition those

contents were in. Looking inside the bag, Officer Burgdorf found pieces of a broken

ceramic plate and a smaller plastic bag containing a tan powder that Officer Burgdorf

believed to be heroin.

       The officers then transported Carrawell to the police station for booking. During

the drive to the station, Carrawell continued to direct profanities at the officers. Due to

Carrawell’s agitated state, the officers testified that they did not want to make further



                                              3
contact with him until he was safely confined at the station. Upon arriving at the police

station, Carrawell continued to be uncooperative throughout the booking process.

                                          Analysis

       The “search incident to arrest” exception encompasses two distinct rationales and

a failure to distinguish between them accounts for the erroneous conclusion in the

principal opinion. First, “a search may be made of the person of the arrestee by virtue of

the lawful arrest.” United States v. Robinson, 414 U.S. 218, 224 (1973). The Supreme

Court cited “the long line of authorities of this Court dating back to Weeks [v. United

States, 232 U.S. 383 (1914)]” and “the history of practice in this country and in England”

in concluding that a search of the arrestee’s person – including clothing and personal

effects – requires “no additional justification” beyond the validity of the custodial arrest.

Robinson, 414 U.S. at 235. The Court held that 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.

       Second, the “search incident to arrest” exception allows a warrantless search “of

the area within the control of the arrestee.” Id. at 224. Unlike the first application above,

however, this second application requires additional justification which the first

application does not. In Chimel v. California, 395 U.S. 752, (1969), the Supreme Court

held that this application of the “search incident to arrest” exception must be justified by

particularized concerns that the arrestee might otherwise access a weapon or destroy

evidence. For some time, the Chimel requirement of additional justification was not

enforced for searches within the interior of the arrestee’s car, see New York v. Belton, 453

                                              4
U.S. 454, 459–61 (1981), but the Supreme Court eventually overruled Belton and held

that all searches of an arrestee’s surroundings – including the interior of a car – must be

supported by some additional exigency or justification beyond the fact of the arrest.

Arizona v. Gant, 556 U.S. 332, 335 (2009).

       But Gant and its zealous ratification of Chimel were limited only to the second

application of the “search incident to arrest” exception, i.e., a search not of the arrestee’s

person or effects but of items within the arrestee’s immediate reach or control. Nothing

in Gant or Chimel purports to limit the first application of the “search incident to arrest”

exception discussed in Robinson, i.e., a search of the arrestee’s person and effects.

Unlike a search of the arrestee’s surroundings, the search of the arrestee’s person and

effects does not require the “case-by-case adjudication” required by Gant and Chimel.

Robinson, 414 U.S. at 235. Instead, these searches are justified solely by the fact that the

officers were making a lawful arrest. Id. at 232 (“The peace officer empowered to arrest

must be empowered to disarm. If he may disarm, he may search, lest a weapon be

concealed.”) (internal quotation marks omitted).

       Accordingly, the question of whether a “search incident to arrest” must have the

“case-by-case” justification required by Chimel – or whether no such justification is

required under Robinson – turns on whether the item searched was an item of personal

property immediately associated with the person of the arrestee. If so, then Robinson

applies and no justification beyond the fact of a lawful arrest need be shown. See United

States v. Chadwick, 433 U.S. 1, 15 (1977) (requiring Chimel justification only for

searches of “personal property not immediately associated with the person of the

                                               5
arrestee” (emphasis added)), overruled on other grounds by California v. Acevedo, 500

U.S. 565 (1991).

       Prior to this case, courts have drawn a bright line between these two related, but

very different, applications of the “search incident to arrest” exception. This line, often

referred to as the “time of arrest” rule, provides that an item is “immediately associated”

with the arrestee’s person such that it can be searched under Robinson without further

justification under Chimel if the arrestee has actual possession of the item at the time of a

lawful arrest. See United States v. Oakley, 153 F.3d 696, 697–98 (8th Cir.1998)

(backpack); United States v. Tavolacci, 895 F.2d 1423, 1428–29 (D.C. Cir.1990)

(luggage); Carter v. State, 788 A.2d 646, 655 (Md. 2002) (lunch bag); State v. Ellis, 355

S.W.3d 522, 524–25 (Mo. App. 2011) (backpack); People v. Brown, 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 § 3[a], at 780 (1984 &

2012 Supp.) (collecting cases).

       In other words, under Robinson, officers lawfully may search anything that an

arrestee actually is holding or wearing at the time of the arrest. But, if the officers extend

this search to items in the arrestee’s constructive possession, i.e., within the arrestee’s

reach or control, the “case-by-case” justification of Chimel must be met.

       The United States Court of Appeals for the Seventh Circuit provided the rationale

for the bright-line “time of arrest” test in determining whether a search incident to arrest

was a search of the arrestee’s person and effects under Robinson or a search of the

                                               6
arrestee’s surroundings under Chimel: “The human anatomy does not naturally contain

external pockets, pouches, or other places in which personal objects can be conveniently

carried.” United States v. Graham, 638 F.2d 1111, 1114 (7th Cir.1981). 1 Accordingly,

when police seize an arrestee, they necessarily also seize the arrestee’s clothing and

personal effects in the arrestee’s actual possession, all of which may contain a weapon or

evidence. Id. See also United States v. Edwards, 415 U.S. 800, 806 (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’s person under Robinson also justify searching the the arrestee’s clothes and

other items in the arrestee’s actual possession. This rule not only adheres to the

distinctions drawn by the Supreme Court in Robinson and Chimel, it is the sort of simple

and clear direction this Court should provide whenever possible.




1
  The principal opinion states that Graham did not hold a purse is part of the person for purposes
of a search incident to arrest because the Graham court’s decision involved the scope of a search
authorized by a warrant and recognized that the purse was not part of the person with respect to a
search incident to arrest. However, that is not an accurate representation of Graham. In
Graham, the defendant was wearing a purse on his shoulder when he was approached by police
officers with a warrant to search his person. 638 F.2d at 1112. One of the officers removed the
purse from the defendant and searched the bag. Id. The defendant argued that the search of the
bag was unlawful because once the bag “was removed from his person,” it was “held within the
exclusive control of the police.” Id. The defendant contended that the law governing searches
incident to arrest applied, so the warrant authorized only the search of his person, not his purse.
Id. at 1113. The court addressed the defendant’s mistaken understanding of the legitimate scope
of a search incident to arrest:
       [E]ven if defendant was correct in his contention that the law governing searches
       incident to arrest applied, the search of his shoulder purse was clearly within the
       scope of such a search, and the seizure of the [evidence] would therefore not
       have been improper.
Id. at 1114 (emphasis added).
                                                7
       Applying the “time of arrest” rule, the grocery bag was in Carrawell’s actual

possession at the time of his lawful arrest. Like a backpack on his shoulder or a pants

pocket, this bag was “immediately associated with the person of the arrestee” and,

therefore, subject to search incident to his arrest without any further justification under

Chimel. Chadwick, 433 U.S. at 15. Even if further justification were required, which it is

not, it is present in this case. After Carrawell initiated his confrontation with the police,

he reached back into his vehicle to retrieve the grocery bag. While Officer Burgdorf,

who was separated from the other officers by a locked gate, was struggling with

Carrawell, Carrawell was ordered several times to drop the bag. He refused.

       There was no material delay between the time Carrawell was secured and the time

Officer Burgdorf looked inside the bag. In fact, the officers were unable to handcuff

Carrawell until Officer Burgdorf wrested the bag from Carrawell’s hand. Under

Robinson, Officer Burgdorf surely would have been able to look into the bag as he took it

from Carrawell’s hand. Such a search would have been lawful but unreasonably

dangerous because, even though Carrawell was cuffed, Officer Burgdorf and Carrawell

were separated from the other officers by a locked gate. Officer Burgdorf managed to get

both Carrawell and the bag through the gate and over to one of the police vehicles but

again had to set the bag aside to gain enough control over Carrawell to get him safely into

the back of the police vehicle. Immediately thereafter, Officer Burgdorf looked into the

bag because it would have been unreasonable to leave it behind and unsafe to bring it into

the police vehicle without knowing the nature and condition of the contents.



                                              8
       Carrawell argues that the search of the bag was unlawful because, at the time of

the search, he was handcuffed in the patrol car, and the bag was in the exclusive control

of the officers. Carrawell’s understanding of the scope of a search incident to arrest is

mistaken:

       [T]o construe the term “exclusive control” as meaning it attaches
       immediately upon the seizure of an object located on the person or within
       the immediate vicinity of the arrestee, is a construction incapable of
       application consistent with fundamental principles of constitutional law.
       Under such a construction, for example, the warrantless search of an
       arrestee resulting in the seizure of a wallet, purse, or shoulder bag would
       prohibit an immediate search of the contents of that type of container, and
       this is plainly contrary to the law governing searches incident to arrest.

United States v. Garcia, 605 F.2d 349, 355 (7th Cir. 1979).

       Carawell’s construction of exclusive control would swallow completely

Robinson’s exception to the warrant requirement. Instead, exclusive control “must be

construed in the context of its application in Chadwick.” Id. In Chadwick, the Supreme

Court found that the footlocker was within the exclusive control of officers because the

search was conducted at the police station more than an hour after seizure of the

footlocker and long after the defendants were securely in custody. 433 U.S. at 15. Since

Chadwick, lower courts have found the exclusive control analysis does not apply to cases

in which the item searched was “immediately associated” with the arrestee at the time of

the arrest. See Garcia, 605 F.2d 349 (finding it lawful to search two hand-carried

suitcases immediately upon arrest); see also Graham, 638 F.2d at 1114 (noting that a

search of a shoulder purse was within the scope of a search incident to arrest). 2


2
 The Graham court discussed an Illinois case, which the principal opinion mentions to indicate
Graham cannot be relied on. However, as the Eighth Circuit stated: “We are not troubled by the
                                              9
       Further, to construe “exclusive control” to mean that it attaches the instant an

arrestee loses physical contact with the item imposes a warrant requirement unless the

search is absolutely contemporaneous with the seizure and both are absolutely

contemporaneous with the arrest. Courts have rejected this argument because it is neither

workable nor compelled by Robinson, Chadwick or Chimel. A post-Edwards case

decided on remarkably similar facts, United States v. Fleming, 677 F.2d 602, 605 (7th

Cir. 1982), upholds a warrantless search of a paper bag the arrestee had in his hand when

the arrest was initiated. As with the present case, the arrest in Fleming involved a scuffle

and the bag was removed from the defendant’s hand while the officer was attempting to

make the arrest. Id. The officer did not search the contents of the bag until the defendant

was moved to the street and handcuffed. Id. Noting that the case was not governed by

Chadwick, the Fleming court holds that the warrantless search of the bag was lawful

because it was incident to the arrest:

       [I]t does not make sense to prescribe a constitutional test that is entirely at
       odds with safe and sensible police procedures …, unless we intend to use
       the Fourth Amendment to impose on police a requirement that the search be
       absolutely contemporaneous with the arrest, no matter what the peril to
       themselves or to bystanders. It is surely possible for a Chimel search to be
       undertaken too long after the arrest and too far from the arrestee’s person.
       That is the lesson of Chadwick. … [A] five-minute delay between seizing
       [defendant’s] bag and opening it, occasioned by [officer’s] handcuffing
       [defendant] and moving with him to the street, [did not] defease[]
       [officer’s] right to search under Chimel principles.



Graham court’s tacitly accepting and distinguishing an Illinois case that rejected a station-house
search allegedly undertaken incident to an arrest. The Illinois case does not take into account the
1981 decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768. The Illinois
courts are currently ruling as we do here.” Curd v. City Court of Judsonia, Arkansas, 141 F.3d
839, 843 n.11 (8th Cir. 1998).
                                                10
Id. at 607-08. 3

       In this case, Carrawell argues that exclusive control over the bag attached once he

was put into the patrol car. As discussed in Garcia, this is “plainly contrary to the law

governing searches incident to arrest.” 638 F.2d at 1114. Had Carrawell left the grocery

bag in his car, Chimel would have required additional justification to search it even if it

was within his reach or control at the time of this arrest. But he did not. He grabbed the

bag and held onto it throughout the ensuing confrontation and struggle. The grocery bag

was as much a part of Carrawell’s body and effects as if Carrawell had jammed it into a

jacket pocket and Officer Burgdorf had pulled it loose and thrown it to the ground while

subduing him. In either case, the search is lawful under Robinson because the bag was in

Carrawell’s actual possession at the time of the arrest. Nothing more is required. The

Supreme Court of Washington summarized this law with admirable clarity:

       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, 129 S.Ct. 1710
       (citing Belton, 453 U.S. at 460, 101 S.Ct. 2860). 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. 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

3
  The Eighth Circuit stated that when an item is seized from the arrestee’s person in the course
of a lawful arrest, it does not matter whether the arrestee was capable of reaching the item at the
time of the search. Curd, 141 F.3d at 842 n.9; see also 3 W. LaFave, Search and Seizure, §
5.3(a) at 193(5th ed. 2012) (“The notion seems to be that Robinson recognized that anything on
the person was “fair game” for a search, and that the opportunity of the police to search should
not be more limited merely because there may have been reasons making a full search there
impractical or because the police opted for the less humiliating alternative of a search in the
privacy of the stationhouse.”) (footnotes omitted).
                                                11
       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, 94 S.Ct. 467 (search of the person or vehicle
       occupants); Chimel, 395 U.S. at 753–54, 89 S.Ct. 2034 (search of arrestee’s
       home).

State v. Byrd, 310 P.3d 793, 799-800 (2013) (emphasis added).

       The principal opinion rejects the bright-line “time of arrest” rule and all the cases

applying it because it concludes these cases are contrary to Edwards. This is a

misapplication of Edwards, which, if anything, reinforces the holding of Robinson that a

search incident to arrest may be made of the arrestee and those effects in the arrestee’s

actual possession at the time of the arrest without the need for any further justification

under Chimel. 4

       If, as the principal opinion suggests, Edwards requires the police to obtain a

warrant to search a wallet or any other item taken from an arrestee’s person during the

course of a lawful search, then Edwards must have overruled Robinson (albeit sub

silentio) because the search of the cigarette package in Robinson would have been

unlawful under such a rationale. Yet, in the 41 years since Edwards was decided, such a

dramatic redrawing of the landscape of searches incident to lawful arrests has gone

unnoticed and unenforced.




4
   Far from supporting the unprecedented approach taken by the principal opinion, Edwards
actually holds that the police’s authority to seize and search items within the arrestee’s
“immediate possession” is measured at the time of arrest, it does not need to be exercised at that
moment. Edwards, 415 U.S. at 807. Effects in the arrestee’s “immediate possession” at the time
of arrest may be searched after the arrestee is safely confined. Id. at 801-802 (search of the
arrestee’s clothes was lawful even though search occurred approximately 10 hours after arrestee
was in custody).
                                               12
       Even the Supreme Court’s most recent relevant decision does not ascribe such a

sea change effect to Edwards. Instead, in Riley v. California, 134 S.Ct. 2473 (2014), the

Court reaffirmed its holding in Robinson that a lawful arrest – by itself – establishes the

authority to search the person and effects of an arrestee even when there are no

particularized Chimel concerns present at the time of the search. Id. (citing Robinson,

414 U.S. at 236). “In doing so, the Court did not draw a line between a search of [the]

person and a further examination of the cigarette pack found during that search.” Id.

at 2484 (emphasis added).

       Once an officer gained control of the pack, it was unlikely that Robinson
       could have accessed the pack’s contents. But unknown physical objects
       may always pose risks, no matter how slight, during the tense atmosphere
       of a custodial arrest. The officer … testified that he could not identify the
       objects in the cigarette pack …. Given that, a further search was a
       reasonable protective measure.

Id. (Emphasis added and internal citations omitted).

       If Edwards requires officers to obtain a warrant to search all items removed from

the person of the arrestee during an arrest, as the principal opinion suggests it does, then

the Court’s discussion in Riley of Robinson – and its careful efforts in Riley to create a

cell-phone-sized exception to Robinson – would have been unnecessary. Instead, the

Court noted that, because such technology was “nearly inconceivable … when Chimel

and Robinson were decided,” it was required to re-weigh the arrestee’s and the

government’s interests and – solely due to the unique properties of cell phones – to rule

on the side of individual privacy where that is the item taken from the arrestee. Id. But,

in doing so, the Court specifically noted – and approved – that Robinson generally struck

this balance in favor of allowing a warrantless search of the arrestee’s person and effects
                                             13
with no particularized showing of need: “On the government interest side, Robinson

concluded that the two risks identified in Chimel [i.e., officer safety and preservation of

evidence] … are present in all custodial arrests.” Id. at 2484-85 (emphasis added). As

a result, Riley reaffirmed the Robinson-Chimel distinction, but created a singular

exception to Robinson for cellphones seized from the person of the arrestee during a

lawful arrest; an exception which would not have been necessary (or even logical) if

Reynolds had the reach and breadth the principal opinion ascribes to it in this case.

       Here, Officer’s Burgdorf’s search of Carrawell’s bag occurred mere seconds – not

hours – after Carrawell was confined in the back of the police vehicle, and long before

Carrawell was safely detained at the police station. Even if Edwards does not permit an

hours-long delay between the seizure and the search of an item that was taken from the

arrestee’s actual possession at the time of the arrest, nothing in Edwards suggests that the

momentary delay between when Officer Burgdorf wrested the bag from Carrawell’s grip

and when Officer Burgdorf looked into the bag to see what Carrawell had been holding

onto so doggedly rendered that search unconstitutional. This was one continuous and

potentially dangerous course of action initiated by Carrawell, and the momentary delay

between taking the bag from Carrawell and looking into that bag was more than justified

by Officer Burgdorf’s more pressing obligations of protecting the bystanders, protecting

himself and the other officers, and subduing Carrawell.




                                             14
                                       Conclusion

       Because the bag was in Carrawell’s immediate possession and seized at the time

of the arrest, the search was a lawful search incident to arrest under Robinson. On this

basis, I would affirm the circuit court’s judgment.




                                                        Paul C. Wilson, Judge




                                            15
            SUPREME COURT OF MISSOURI
                                       en banc

STATE OF MISSOURI,                               )
                                                 )
              Respondent,                        )
                                                 )
v.                                               )       No. SC94927
                                                 )
DERRICK L. CARRAWELL,                            )
                                                 )
              Appellant.                         )

        OPINION CONCURRING IN PART AND DISSENTING IN PART

       I concur with the principal opinion to the extent it holds that the search was

unlawful because it occurred while Mr. Carrawell’s belongings were beyond his

immediate control. I respectfully dissent from the principal opinion’s holding that the

exclusionary rule does not apply.

       The principal opinion makes a compelling case, based on binding authority from

the United States Supreme Court, that the search was unlawful. After establishing that

the search was unlawful, the principal opinion holds that the evidence seized from

Mr. Carrawell’s personal belongings is nonetheless admissible because at least two

Missouri court of appeals cases had erroneously held that an arrestee’s personal

belongings may be searched even when they are not within the immediate control of the

arrestee. See State v. Ellis, 355 S.W.3d 522, 524 (Mo. App. 2011); State v. Rattler, 639

S.W.2d 277, 278 (Mo. App. 1982). As the principal opinion notes, the reasoning in Ellis
and Rattler misconstrues the individual constitutional right to be free from unreasonable

searches. While it is true that the exclusionary rule does not apply when a search is

conducted in a manner permitted by existing case law, as the principal opinion

demonstrates, the overwhelming weight of authority from the United States Supreme

Court establishes that the search was illegal.

       Given the overwhelming weight of authority holding that searches such as the one

conducted in this case are illegal, the exclusionary rule should apply. The exclusionary

rule incentivizes the government to exercise its considerable authority with due regard for

constitutionally protected individual rights. If the government can justify illegal searches

by parsing through volumes of court of appeals cases until locating an erroneously

decided case supporting the desired result, then the incentives provided by the

exclusionary rule are diluted. Although Mr. Carrawell’s alleged actions do not make

him the most sympathetic figure, the fact remains that the constitutional limitations on the

government’s authority to search and seize private property retain vitality only if those

limits are applied rigorously and consistently. Therefore, I would hold that the illegally

obtained evidence should have been excluded.



                                                     _________________________________
                                                     Richard B. Teitelman, Judge




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