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      IUPR.eME c:::.:J~T. STATE OF WASHINGIQII

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                       IN THE SUPREME COURT OF THE STATE OF WASHINGTON


       STATE OF WASHINGTON,                                    )
                                                               )
                                                 Respondent,   )             No. 88267-3
                                                               )
                  v.                                           )               EnBanc
                                                               )
       ABRAHAM MACDICKEN,                                      )
                                                               )   Filed _   _:_F=EB;__;2=-7.:__._20;__;14_ _
                                                 Petitioner.   )
       ___________________________)

                  OWENS, J. -- When Abraham MacDicken was arrested on suspicion of armed

       robbery, he was carrying a laptop bag and pushing a rolling duffel bag. The arresting

       officers moved the bags a car's length away and searched them. MacDicken claims

       this search violated his rights under the Fourth Amendment to the United States

       Constitution and article I, section 7 of the Washington State Constitution. But as this

       court recently held, officers may search an arrestee's person and articles closely

       associated with his or her person at the time of arrest without violating either of those

       constitutional provisions. State v. Byrd, 178 Wn.2d 611, 625, 310 P.3d 793 (2013).

       Applying that rule here, we hold that the bags carried by MacDicken were closely

        associated with him at the time of arrest and thus subject to search without a warrant.
State v. MacDicken
No. 88267-3


                                        FACTS

       In her room at a Lynnwood hotel, Krystal Steig was robbed at gunpoint. The

robber took various items, including a laptop and a cell phone, and put them in a

suitcase belonging to Steig's roommate, Thomas Brinldy. As the robber was leaving,

he walked past Brinldy in the hotel stairwell. Brinldy recognized his suitcase and

confronted the robber, who pulled out a gun and pointed it at him. Brinldy quickly

exited the stairwell. Brinldy and Steig called the police to report the robbery and later

identified MacDicken from still photos taken from the hotel's video surveillance

camera.

       The following morning, police tracked the stolen cell phone to a hotel in

Edmonds. An officer saw MacDicken leaving the Edmonds hotel and recognized him

as the man Steig and Brinldy had identified as the assailant. MacDicken had two bags

in his possession when the officer saw him: a laptop bag, which he carried, and a

rolling duffle bag, which he was pushing. Officers ordered MacDicken to the ground

and handcuffed him. As MacDicken, still handcuffed, was standing up next to a

patrol car speaking with another officer, an officer moved the bags MacDicken had

been carrying a car's length away and began to search them, without obtaining a

warrant. Inside the laptop bag, police found a handgun, Steig's laptop, a letter




                                            2
State v. MacDicken
No. 88267-3


addressed to Steig, and other items. 1 After being asked, MacDicken told police he

had stolen the laptop bag from Steig but denied robbing her with a gun. MacDicken

claimed at a later hearing that he in fact told police that the laptop bag was his, but the

trial court found that testimony not credible.

       MacDicken was charged with two counts of first degree robbery (with a firearm

enhancement) and one count of unlawful possession of a firearm in the first degree.

He moved to suppress the evidence from the bags, arguing that the search violated his

rights under the Fourth Amendment to the United States Constitution and article I,

section 7 of the Washington State Constitution. The trial court denied MacDicken's

motion. As part of that ruling, the court concluded that MacDicken did not have

standing to challenge the search of the laptop bag because it was stolen but

acknowledged that under the automatic standing rule, MacDicken had automatic

standing to challenge the search as it related to the unlawful possession of a firearm

charge. The trial court then found that the search was a valid search incident to arrest.

After a trial, the jury found MacDicken guilty on all three counts. MacDicken

appealed and the Court of Appeals affirmed, reasoning that because the bags were

within his reach at the time of the search, the warrantless search was valid as incident

to his lawful arrest. State v. MacDicken, 171 Wn. App. 169, 176, 286 P.3d 413




1
  From the record, it does not appear that any significant pieces of evidence were
recovered from the rolling duffle bag.

                                             3
State v. MacDicken
No. 88267-3


(2012). This court granted MacDicken's subsequent petition for review. State v.

MacDicken, 177 Wn.2d 1004, 300 P.3d 416 (2013).

                                          ISSUE

       Was the warrantless search of the bags carried by MacDicken at the time of his

arrest a valid search incident to a lawful arrest?

                                       ANALYSIS

       MacDicken claims that the warrantless search of his bags violates his rights

under the Fourth Amendment to the United States Constitution and article I, section 7

of the Washington State Constitution. When a party alleges violations of both of

those provisions, we analyze the Washington State Constitution first because it is

more protective of individual privacy. State v. Walker, 157 Wn.2d 307, 313, 138 P.3d

113 (2006). Article I, section 7 provides that "[n]o person shall be disturbed in his

private affairs, or his home invaded, without authority of law." WASH. CONST. art. I,

§ 7. Warrantless searches violate this provision unless they fall under one of"a few

jealously guarded exceptions." State v. Afana, 169 Wn.2d 169, 176-77, 233 P.3d 879

(201 0). One of those exceptions covers searches incident to lawful arrest. United

States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973).

       There are two types of warrantless searches that may be made incident to a

lawful arrest: a search of the arrestee's person and a search of the area within the

arrestee's immediate control. !d.; Byrd, 178 Wn.2d at 616-17. This court recently



                                             4
State v. MacDicken
No. 88267-3


examined the historical development of these two types of searches incident to arrest

and the reasons why courts treat them differently. A warrantless search of the

arrestee's person is considered a reasonable search as part of the arrest of the person.

Robinson, 414 U.S. at 225-26. Such a search presumes exigencies and is justified as

part of the arrest; therefore it is not necessary to determine whether there are officer

safety or evidence preservation concerns in that particular situation. Byrd, 178 Wn.2d

at 618. In contrast, a warrantless search of the arrestee's surroundings is allowed only

if the area is within an arrestee's "immediate control." Chime! v. California, 395 U.S.

752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), overruled in part by Arizona v.

Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Such searches are

justified by concerns of officer safety or the preservation of evidence and are limited

to those areas within reaching distance at the time of the search. Gant, 556 U.S. at

351.

       In this case, the parties argued over whether the search of bags that were a car's

length away was justified by concerns of officer safety or preservation of evidence.

But as described below, we hold that the search of the bags carried by MacDicken at

the time of his arrest constituted a search of his person. Therefore, we do not analyze

whether the search was a valid search of the area within MacDicken' s immediate

control under Chime! and Gant.




                                             5
State v. MacDicken
No. 88267-3


       Instead, we look to Byrd, a recent case in which this court upheld the search of

an arrestee's purse that she was holding at the time that she was arrested. Byrd, 178

Wn.2d at 623-24. The court held that a valid search of an arrestee's person included

the articles of an arrestee's person, such as her clothing and the purse that was in her

possession at the time of arrest. !d. at 623. Such a search extends "only to articles 'in

such immediate physical relation to the one arrested as to be in a fair sense a

projection of his person."' !d. (quoting United States v. Rabinowitz, 339 U.S. 56, 78,

70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J., dissenting)). The court defined

articles immediately associated with the arrestee's person as "personal articles in the

arrestee's actual and exclusive possession at or immediately preceding the time of

arrest." Id. The court cautioned that such a search does not include "articles within

the arrestee's reach but not actually in his possession." Id. The court also noted that a

significant delay between the arrest and the search could render the search

unreasonable. !d. at 623-24.

       Here, the laptop bag and the rolling duffel bag were in MacDicken's actual and

exclusive possession at the time of his arrest. Therefore, applying the rule from Byrd,

we conclude that the bags were immediately associated with his person. Because

there was no significant delay between the arrest and the search that would render the

search unreasonable, we hold that the search of the bags was a part of the lawful

search ofMacDicken's person pursuant to his arrest. A warrant is not needed for a



                                             6
State v. MacDicken
No. 88267-3


search of an arrestee's person, and thus this search was a valid search incident to

arrest under both the federal and state constitutions. 2

                                     CONCLUSION

       Both the United States Constitution and the Washington State Constitution

provide protection against warrantless searches, but certain limited searches are

allowed incident to a lawful arrest. This includes a search of the person being

arrested. In Byrd, this court held that a search of the arrestee's person includes a

search of the articles that the arrestee has actual possession of at the time of arrest.

Here, MacDicken had a laptop bag and a rolling duffel bag in his possession when he

was arrested; the police lawfully searched those bags as part of the search of his

person pursuant to his arrest. We affirm the Court of Appeals, albeit for different

reasonmg.




2
  In the answer to the petition for review, the State requested that if the court found the
search to be invalid, it consider whether there was an alternate basis to uphold the trial
court's order: that MacDicken lacked standing to challenge the search as to the robbery
charge. Because we hold that the search was a valid search incident to arrest, we do not
reach this issue.

                                              7
State v. MacDicken
No. 88267-3




WE CONCUR:




                     8
State v. MacDicken, No. 88267-3
(Gordon McCloud, J., Dissenting)




                                   No. 88267-3

      GORDON McCLOUD, J. (dissenting)-The majority upholds the

search of the laptop and rolling duffel bags in this case under a "time of arrest"

rule. Majority at 6. I believe that the "time of arrest" rule is inconsistent with

United States Supreme Court precedent.           For that reason, I respectfully

dissent.

      The United States Supreme Court has long recognized "the basic rule

that 'searches conducted outside the judicial process, without prior approval

by judge or magistrate, are per se unreasonable under the Fourth

Amendment-subject only to a few specifically established and well-

delineated exceptions."' Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710,

173 L. Ed. 2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357,

88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). "Among the exceptions to the warrant

requirement is a search incident to a lawful arrest [, which] derives from



                                        1
State v. MacDicken, No. 88267-3
(Gordon McCloud, J., Dissenting)




interests in officer safety and evidence preservation that are typically

implicated in arrest situations." Id. (citing Weeks v. United States, 232 U.S.

383,392, 34 S. Ct. 341, 58 L. Ed. 652 (1914); United States v. Robinson, 414

U.S. 218, 230-34, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)).           Under the

exception for a "search incident to a lawful arrest," an officer may search only

'"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."' Id. at 338-39 (quoting

Chime/ v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685

(1969), overruled in part by Gant, 556 U.S. 332). The scope of a search

incident to arrest is strictly limited by the interests in officer safety and

evidence preservation. !d. Thus, "[i]f 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." Id. (citing Preston v. United States, 376 U.S. 364, 367-

68, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964)).

       The majority's "time of arrest" rule, which this court recently affirmed

in State v. Byrd, 178 Wn.2d 611, 310 P.3d 793 (2013), creates an additional



                                       2
State v. MacDicken, No. 88267-3
(Gordon McCloud, J., Dissenting)




search incident to arrest exception, which is contrary to United States

Supreme Court precedent. Under this "time of arrest" exception, the police

may search all "personal articles in the arrestee's actual and exclusive

possession at or immediately preceding the time of arrest," 1 even after such

articles have been reduced to the exclusive control oflaw enforcement and are

completely inaccessible to the arrestee, and thus pose no presumptive risk to

officer safety or evidence preservation.

      The majority justifies its "time of arrest" rule by drawing a distinction

between searches of the person incident to arrest, which the majority claims

are governed by Robinson, 414 U.S. 218, and searches of the arrestee's

immediate surroundings, which it claims are governed by Chime/, 395 U.S.

752, and Gant, 556 U.S. 332. Majority at 5. The majority believes that a

Robinson search-which it defines as a search of any "'personal articles in

the arrestee's actual and exclusive possession at or immediately preceding the

time of arrest"'-"presumes exigencies," while a Chime/ search does not. !d.

at 4-6 (quoting Byrd, 178 Wn.2d at 623). Because it concludes that the search

of the bags in this case "constituted a search of [MacDicken's] person," the


       1
           Majority at 6 (citing Byrd, 178 Wn.2d at 623).

                                           3
State v. MacDicken, No. 88267-3
(Gordon McCloud, J., Dissenting)




majority decides that the search is governed by Robinson as opposed to

Chime! and Gant. Majority at 5. Indeed, the majority believes that Chime!

and Gant are irrelevant to this case. I d. ("we do not analyze whether the search

was a valid search of the area within MacDicken' s immediate control under

Chime! and Gant").

      The majority errs.      The Fourth Amendment bars all warrantless

searches incident to arrest unless the government proves that an exception

applies under the "'twin rationales of Chime/"' 2-officer safety and evidence

preservation. 3 Robinson is an application of, not an exception to, this rule.

Robinson, 414 U.S. at 226 (explaining that a search ofthe person incident to

lawful arrest is always justified by the Chime! rationales); accord Knowles v.

Jowa,525U.S.113, 116,118, 119S.Ct.484, 142L.Ed.2d492(1998)(noting

that Robinson, 414 U.S. at 234, recognized "two historical rationales for the


       2
        Gant, 556 U.S. at 342 (quoting Thornton v. United States, 541 U.S. 615,
624, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (O'Connor, J., concurring in part)).

       3
         Chime!, 395 U.S. at 762-63 ("[The arrestee's person and] the area into
which an arrestee might reach ... must ... be governed by a like rule. A gun on a
table or in a drawer in front of one who is arrested can be as dangerous to the
arresting officer as one concealed in the clothing of the person arrested. There is
ample justification, therefore, for a search of the arrestee's person and the area
'within his immediate control '-construing that phrase to mean the areas from
within which he might gain possession of a weapon or destructible evidence.").

                                         4
State v. MacDicken, No. 88267-3
(Gordon McCloud, J., Dissenting)




'search incident to arrest' exception: (1) the need to disarm the suspect in

order to take him into custody, and (2) the need to preserve evidence for later

use at trial" and holding that these rationales do not justify a "'search incident

to citation"').

       Contrary to the majority's reasoning, there is no difference between the

presumptions that govern a Robinson search and those that govern a

Gant/ Chime! search. In both, a presumption of officer danger or evidence

destruction justifies a protective search incident to arrest. See Maryland v.

Buie, 494 U.S. 325, 342 n.6, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990)

(Brennan, J., dissenting) ("Chime! established that police officers may

presume as a matter of law, without need for factual support in a particular

case, that arrestees might take advantage of weapons or destroy evidence in

the area 'within [their] immediate control'; therefore, a protective search of

that area is per se reasonable under the Fourth Amendment.") (first emphasis

added) (alteration in original) (quoting Chime!, 395 U.S. at 763)). 4 But-also


       4  In this respect, a search incident to arrest differs from a search based on
"exigent circumstances"-in the latter context there is no presumption that any
danger justifies the search. E.g., Missouri v. McNeely,_ U.S._, 133 S. Ct. 1552,
1559, 185 L. Ed. 2d 696 (2013) ("To determine whether a law enforcement officer
faced an emergency that justified acting without a warrant, this Court looks to the
totality of the circumstances."); Kentucky v. King, _U.S._, 131 S. Ct. 1849, 1862,

                                         5
State v. MacDicken, No. 88267-3
(Gordon McCloud, J., Dissenting)




contrary to the majority's reasoning-that presumption applies only where

police could reasonably have believed that the area searched was in fact

accessible to the arrestee or a confederate at the time of the search. Gant, 556

U.S. at 344.

      As a practical matter, when the search is limited to the arrestee's

"person," the question of access is not subject to dispute. See Chime!, 395

U.S. at 762-63; Robinson, 414 U.S. at 226 (treating the arrestee's person as an

area per se within the arrestee's control).      But the question of access is

nevertheless paramount in any search incident to arrest. A court cannot avoid

that question just by labeling the items searched-in this case a shoulder bag

and a piece of rolling luggage-'"proj ection[ s] of [the arrestee's] person."'

Majority at 6 (quoting Byrd, 178 Wn.2d at 623). To do so is to untether the

search incident to arrest exception from its justifying rationales.

      This is precisely what the majority's "time of arrest" rule does. Under

that rule, police are simply "entitled" to search any item in the arrestee's


179 L. Ed.2d 865 (20 11) ("Any warrantless entry based on exigent circumstances
must, of course, be supported by a genuine exigency."); Brigham City v. Stuart, 54 7
U.S. 398, 406, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) ("In these circumstances,
[the warrantless entry was justified because] the officers had an objectively
reasonable basis for believing both that the injured adult might need help and that
the violence in the kitchen was just beginning.").

                                         6
State v. MacDicken, No. 88267-3
(Gordon McCloud, J., Dissenting)




"actual possession" at the time of arrest. Byrd, 178 Wn.2d at 614, 621. This

"entitle[ment]" requires no justification beyond the "authority of a custodial

arrest itself," and it renders the question of access completely irrelevant. Id.

at 614, 618. Thus, under the "time of arrest" rule, police may be "entitled" to

search an item even when there is in fact no possibility that the arrestee could

gain access to it. Id. at 614-15.

      This is in direct contradiction to United States Supreme Court

precedent. E.g., United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476,

53 L. Ed. 2d 538 (1977) ("warrantless searches of luggage or other property

seized at the time of an arrest cannot be justified as incident to that arrest ...

[o]nce law enforcement officers have reduced [the property] to their exclusive

control"). A "police entitlement" theory of searches incident to arrest treats

certain items as inherently searchable; it posits that an arresting officer should

not have to forgo a search of these items-the officer's entitlement-just

because that search cannot possibly be justified under Chime!. The Court has

flatly rejected the notion that any such search is permitted under the Fourth

Amendment. Gant, 556 U.S. at 342 (disapproving the "police entitlement"

theory of searches incident to arrest, and contrasting that theory with '"the


                                        7
State v. MacDicken, No. 88267-3
(Gordon McCloud, J., Dissenting)




twin rationales of Chime!"' (quoting Thornton, 541 U.S. at 624 (O'Connor,

J., concurring in part)), 347 ("allow[ing] vehicle searches incident to any

arrest would serve no purpose except to provide a police entitlement, and it is

anathema to the Fourth Amendment to permit a warrantless search on that

basis").   As numerous well-reasoned cases have recognized, the Chime!

rationales are the only justification for a search incident to arrest. 5 There is

no special rule for-and no police entitlement to search-items in the

arrestee's possession at the "time of arrest."

       Because I believe that the "time of arrest" rule violates Fourth

Amendment protections, I dissent from the majority's decision to affirm the

Court of Appeals on that basis. Majority at 7 ("We affirm the Court of

Appeals, albeit for different reasoning.").




       5
         E.g., United States v. Wurie, 728 F.3d 1, 10 (1st Cir. 2013) (discussing
Gant' s recognition of "categories of searches that cannot ever be justified under
Chimel," and holding that these categories sometimes include searches of items
found on the arrestee's person), cert. granted, 187 L. Ed. 2d 848 (2014); United
States v. Shakir, 616 F.3d 315, 318 (3d Cir. 2010) (rejecting a "time ofthe arrest"
rule and concluding that Gant controls whenever "the item searched is removed
from the suspect's control between the time of the arrest and the time of the search");
United States v. Monclavo-Cruz, 662 F.2d 1285, 1287 (9th Cir. 1981) (warrantless
search of arrestee's purse "conducted more than an hour after police gained
exclusive control of it" invalid under Chadwick).

                                           8
State v. MacDicken, No. 88267-3
(Gordon McCloud, J., Dissenting)




      Like every search incident to arrest, the search ofMacDicken's bags is

governed by Chimel and Gant. The Court of Appeals below concluded that

the search was justified under Chimel because "MacDicken could have

possibly reached the bags," which were "not in [the arresting officer's]

exclusive control." State v. MacDicken, 171 Wn. App. 169, 175, 286 P.3d

413 (2012). That conclusion is not warranted by the record.

      To be sure, an appellate court may decide that a warrantless search was

permissible as a matter of fact, but only where "the record ... is adequate to

review [the] issue." State v. Scalara, 155 Wn. App. 236, 242, 229 P.3d 889

(20 10) ("unlike in other recent Gant-related appeals, we need not remand for

a further evidentiary hearing"); accord State v. Robinson, 171 Wn.2d 292,

306, 253 P.3d 84 (2011) (remanding for new suppression hearing where,

because trial occurred prior to Gant, "neither the petitioners nor the State had

the incentive or opportunity to develop the factual record before the trial

court").

       Contrary to the Court of Appeals' opinion in this case, the record does

not show that MacDicken could have reached into either of the bags at the

time of the search. The trial court below concluded only that "[a]lthough


                                       9
State v. MacDicken, No. 88267-3
(Gordon McCloud, J., Dissenting)




handcuffed, the defendant . . . could still kick at the officers or reach for a

weapon despite the handcuffs." Clerk's Papers (CP) at 65. It is by no means

clear whether the trial court meant that MacDicken could somehow have

reached into the bags-which were at the time of the search "about a car

length away from the defendant"-or whether it meant that MacDicken could

have reached for a weapon located somewhere else. CP at 60. What is clear

is that the trial court did not decide whether the bags had been reduced to the

"exclusive control" of law enforcement at the time of the search. CP at 65-66

("The defendant also invites this court to apply the principles of Gant to this

search incident to arrest of the defendant's person. The court declines to do

so."). Instead, the court applied the two-part test articulated in State v. Smith,

119 Wn.2d 675, 835 P.2d 1025 (1992), abrogated by Byrd, 178 Wn.2d 611,

according to which "'a search incident to arrest is valid under the Fourth

Amendment (1) if the object searched was within the arrestee's control when

he or she was arrested; and (2) if the events occurring after the arrest but before

the search did not render the search unreasonable."' CP at 63 (quoting Smith,

119 Wn.2d at 681 (citing United States v. Turner, 926 F.2d 883, 887 (9th Cir.




                                        10
State v. MacDicken, No. 88267-3
(Gordon McCloud, J., Dissenting)




1991))). This is the "time of arrest" rule, 6 which I believe violates Fourth

Amendment protections.

      Because the trial court applied the "time of arrest" rule to the search of

the bags in this case, it did not determine-and the record did not reveal-

whether MacDicken or anyone else could have accessed the bags at the time

of search, or whether instead those bags had been reduced to law

enforcement's "exclusive control." Chadwick, 433 U.S. at 15. Under United

States Supreme Court precedent, that determination is crucial.              I would

remand to the trial court with instructions that it make that factual

determination, and I therefore respectfully dissent.




       6
         See Byrd, 178 Wn.2d at 623-24 (upholding search of purse because "'the
purse was within [the defendant's] reach and could even be described as on her
person ... at the time of arrest' [and] [t]here was no 'significant delay between the
arrest and the search' that would 'render[] the search unreasonable"' (last alteration
in original) (quoting State v. Byrd, 162 Wn. App. 612, 618, 258 P.3d 686 (2011)
(Brown, J., dissenting); Smith, 119 Wn.2d at 683)).

                                          11
State v. MacDicken, No. 88267-3
Gordon McCloud, J., Dissenting




                                  12
