   IN THE SUPREME COURT OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                   )
                                       )      No. 90751-0
                   Petitioner,         )
                                       )
      v.                               )
                                       )
ANTOINE LAMONT BROCK,                  )
                                       )
                   Respondent.         )
_______________________)                      Filed         SE:P 0 3 2015

      JOHNSON, J.--This case involves whether under Washington State

Constitution article I, section 7, an officer may search an arrestee's backpack as a

search incident to arrest when the arrestee was wearing the backpack at the

moment that he was stopped by police, but not at the time he was arrested several

minutes later. When Officer Erik Olson stopped and seized Antoine Brock, he had

Brock remove the backpack he was wearing and placed it where Brock could not

readily access it. After a period of questioning, the officer arrested Brock and then

searched the backpack. As long as 10 minutes may have lapsed between the time

Olson separated Brock from his backpack and the arrest. The trial court denied

Brock's motion to suppress the evidence taken from the backpack. The Court of

Appeals reversed. State v. Brock, 182 Wn. App. 680, 330 P.3d 236 (2014), review
State v. Brock (Antoine Lamont), No. 90751-0


granted, 181 Wn.2d 1029, 340 P.3d 228 (2015). Under the facts ofthis case, we

hold that the backpack was a part of Brock's person at the time of arrest and

reverse the Court of Appeals, upholding the search as a valid search incident to

arrest.

                                                 FACTS

          Early in the morning, at approximately 3 a.m. on May 21, 2008, Officer

Olson was patrolling Golden Gardens Park when he noticed the men's restroom

door was open and the lights were on. The park was closed and had been since

11:30 p.m. As he approached the men's room, the officer could see a person's legs

inside the stall. Officer Olson waited approximately 10 minutes before Brock

emerged, wearing baggy clothing and carrying a backpack.

          Olson identified himself as an officer and informed Brock that he was not

allowed in the park. Although Olson had probable cause to arrest Brock for

trespass at that moment, he did not. Instead, he had Brock remove his backpack

and performed a Terry 1 stop and frisk. Olson did not feel a wallet during the frisk.

Brock explained that he did not have any identification but provided Olson with a

name, Dorien Halley, and a corresponding birthdate and Social Security number.

          Olson directed Brock to follow him to his patrol truck so he could run his

name through the Washington database. For safety purposes, Olson carried the


          1
              Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).


                                                     2
State v. Brock (Antoine Lamont), No. 90751-0


backpack and placed it on the passenger seat of his vehicle while Brock stood 12 to

15 feet away on the curb. Olson reminded Brock he was not under arrest at that

time but that he was also not yet free to go.

      Brock indicated that he had a California license instead of a Washington

license, so Olson ran the name through both the Washington and California

databases. Neither search yielded any results. At that point, Olson read Brock his

Miranda 2 rights and arrested Brock for providing false information but explained

to Brock that "he wasn't necessarily going to jail." Verbatim Report of

Proceedings (June 13, 2011) at 56. Because Brock had been cooperative, Olson did

not use handcuffs and instructed Brock just to remain near the curb while he

returned to his truck to search the backpack for identification. Olson considered the

backpack search "a search of Brock's person incident to arrest" for providing false

information.

       In searching the backpack, Olson discovered a wallet containing two small

"baggies" of what appeared to be marijuana and methamphetamine. He also found

a Department of Corrections (DOC) inmate identification card displaying Brock's

photograph and identifying him as Antoine L. Brock. Olson walked back over to

Brock, handcuffed him, and put him in the back of his patrol truck. Olson




       2
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


                                                 3
State v. Brock (Antoine Lamont), No. 90751-0


estimated that the entire encounter, from the time of the initial contact to the time

he handcuffed Brock, was about 10 minutes.

      Olson then ran Brock's real name through the database and discovered that

Brock had a DOC felony arrest warrant. Once Washington State Patrol confirmed

the warrant, Olson had no choice but to take Brock to jail. Before doing so, Olson

emptied the contents of the backpack in what he considered an inventory search

prior to taking Brock to jail for booking. Olson explained that for safety reasons,

he could not bring the backpack to the jail without first performing a search of the

arrestee's personal effects for weapons or explosives. In his search, Olson

discovered numerous checks, credit cards, mail, and more baggies possibly

containing narcotics.

       Based on this evidence, the State charged Brock with 10 counts of identity

theft in the second degree, 3 counts of forgery, and violation of the Uniform

Controlled Substances Act, chapter 69.50 RCW. Brock moved to suppress the

evidence discovered in his backpack, which the trial court denied, concluding that

the search was a valid search incident to arrest. Brock agreed to a stipulated facts

bench trial and was found guilty on all counts except on one count of identity theft.

       Brock appealed, challenging the trial court's suppression ruling under article

I, section 7 of the Washington State Constitution. The State responded that the




                                           4
State v. Brock (Antoine Lamont), No. 90751-0


search was a valid search of Brock's person. 3 The Court of Appeals reversed

Brock's conviction, agreeing with Brock that it was not a valid search of his person

under article I, section 7 because Brock did not have actual, exclusive possession

of the backpack "immediately preceding" arrest. Brock, 182 Wn. App. at 689.

                                           ANALYSIS

      Article I, section 7 of the Washington State Constitution provides for broad

privacy protections for individuals and generally prohibits unreasonable police

invasions into personal affairs. We presume that a warrantless search of an

individual's personal item, such as a backpack, violates these protections unless the

search falls within "one of the few 'carefully drawn and jealously guarded

exceptions."' State v. Byrd, 178 Wn.2d 611, 616, 310 P.3d 793 (2013) (quoting

State v. Bravo Ortega, 177 Wn.2d 116, 122, 297 P.3d 57 (2013)). One such

exception is a search incident to arrest, in which the arresting officer has authority

to search the arrestee's person and his or her personal effects.

       There are two discrete types of searches incident to arrest: ( 1) a search of the

arrestee's person (including those personal effects immediately associated with his

or her person--such as purses, backpacks, or even luggage) and (2) a search ofthe

area within the arrestee's immediate control. A valid search of the latter requires a


       3
         On appeal before the Court of Appeals, the State also argued in the alternative that the
backpack search was a valid inventory search. The State abandoned that argument on appeal
before this court.


                                                 5
State v. Brock (Antoine Lamont), No. 90751-0


justification grounded in either officer safety or evidence preservation-there must

be some articulable concern that the arrestee can access the item in order to draw a

weapon or destroy evidence. Byrd, 178 Wn.2d at 617 (citing Chime! v. California,

395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)). The former search does

not; in analyzing the search of an arrestee, we utilize the United States Supreme

Court's rationale from Fourth Amendment that "'a search may be made of the

person of the arrestee by virtue ofthe lawful arrest.'" Byrd, 178 Wn.2d at 617

(quoting United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d

427 (1973)). In such cases, we presume that safety and evidence justifications exist

when taking those personal items into custody as part of the arrestee's person.

       The distinction as to whether a particular personal item constitutes part of

the arrestee's person, as opposed to just part of the surrounding area, turns on

whether the arrestee had "actual and exclusive possession at or immediately

preceding the time of arrest." Byrd, 178 Wn.2d at 623. This is known as the "time

of arrest" rule. We have previously applied this rule in cases involving an arrestee

who was holding the personal item at the precise moment of arrest. But here,

because Brock was separated from his backpack several minutes prior to arrest, the

issue involves the scope of "immediately preceding arrest."

       In Byrd, we analyzed this "time of arrest" distinction between items that are

part of the arrestee's "person" and items merely within the arrestee's immediate


                                           6
State v. Brock (Antoine Lamont), No. 90751-0


control. Byrd involved the validity of a warrantless search of a car passenger's

purse. At the time of arrest, Byrd held the purse in her lap, but when ordered to

step out of the car, she asked to leave the purse in the car. The officers refused and

seized her purse as part of the arrest. The purse was removed and searched separate

from her person. We recognized that her physical distance from the bag dispelled

any practical concerns that she could have reached the purse to draw a weapon or

destroy evidence, but we upheld the search as a search of her "person." Unlike

items in the immediately surrounding area, the officer does not need to articulate

any objective safety or evidence preservation concerns before validly searching the

item. We said that the officer's authority to search the purse flowed "from the

authority of [the] custodial arrest itself." Byrd, 178 Wn.2d at 618 (citing Robinson,

414 U.S. at 232). This authority satisfies article I, section 7's requirement that the

incursions into private affairs be supported by "'authority of law."' Byrd, 178

Wn.2d at 618. The arrest provides the constitutional authority of law justifying the

search.

       A second underlying justification for this "part of the person" distinction is

that there are presumptive safety and evidence preservation concerns associated

with police taking custody of those personal items immediately associated with the

arrestee, which will necessarily travel with the arrestee to jail. We said:




                                           7
State v. Brock (Antoine Lamont), No. 90751-0


             The time of arrest rule reflects the practical reality that a search
      of the arrestee's "person" to remove weapons and secure evidence must
      include more than his literal person .... When police take an arrestee
      into custody, they also take posse of his clothing and personal effects,
      any of which could contain weapons and evidence.

Byrd, 178 Wn.2d at 621.

      Brock conflates the "time of arrest" distinction by arguing that his physical

separation from the backpack vitiated any practical safety or evidence preservation

concerns associated with the backpack because he could not reach it, and that the

United States Supreme Court's ruling in Gant and our ruling in Valdez require that

safety and evidence preservation concerns justify the search incident to arrest. 4

However, as we recognized in Byrd, neither of the decisions in Gant or Valdez

restrict the lawful search of an arrestee's person; there is no requirement that the

arrestee be within the reach of the personal item once it is seized as part of the

lawful arrest. We rejected Byrd's argument that her inability to access her purse

affects the analysis.

       We applied this same analysis in State v. MacDicken, 179 Wn.2d 936, 938-

39,319 P.3d 31 (2014), where we upheld the validity of a search ofthe arrestee's



       4
         Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (abrogating
New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) and narrowing the
scope of the search of a vehicle incident to arrest exception); State v. Valdez, 167 Wn.2d 761,
776,224 P.3d 751 (2009) (holding that the "search incident to arrest exception, born of the
common law, arises from the necessity to provide for officer safety and the preservation of
evidence of the crime of arrest, and the application and scope of that exception must be so
grounded and so limited").


                                                8
State v. Brock (Antoine Lamont), No. 90751-0


luggage, even when the luggage was moved a full car length's away from the

arrestee's reach. When the personal item is taken into custody as a part of the

arrestee's person, the arrestee's ability to reach the item during the arrest and

search becomes irrelevant.

      Rather, the safety and evidence preservation exigencies that justify this

"time of arrest" distinction stem from the safety concerns associated with the

officer having to secure those articles of clothing, purses, backpacks, and even

luggage, that will travel with the arrestee into custody. Because those items are part

of the person, we recognize the practical reality that the officer seizes those items

during the arrest. From that custodial authority flows the officer's authority to

search for weapons, contraband, and destructible evidence .

     . In determining the scope of the phrase "immediately preceding," the Court

of Appeals focused on the temporal component-the time between Brock's

exclusive possession and his arrest-and determined that he did not possess the

backpack "immediately" before arrest because it sat in the patrol truck for nearly

10 minutes before Brock was arrested. The court distinguished these facts from

other Washington cases where the arrestee's belongings were separated from the

arrestee for a shorter period of time prior to the arrest. State v. Smith, 119 Wn.2d




                                            9
State v. Brock (Antoine Lamont), No. 90751-0


675, 835 P.2d 1025 (1992); 5 State v. Ellison, 172 Wn. App. 710, 291 P.3d 921

(2013), review denied, 180 Wn.2d 1014, 327 P.3d 55 (2014).

       In Smith, the arrestee's fanny pack fell from his person when he ran from the

officer. The officer managed to catch and arrest Smith and secure him in handcuffs

in her patrol car. The officer then walked back to retrieve the fanny pack and

cleaned up strewn bottles around the scene. The officer returned to the patrol car,

radioed in that she had custody of Smith, and searched the fanny pack

approximately 9 to 17 minutes after the arrest. We held that the subsequent search

of the fanny pack was a valid search incident to arrest because the fanny pack was

worn by the arrestee moments before arrest and was therefore part of his seized

person. We held that a 17-minute delay is also reasonable "where the delay results

solely from the officer's reasonable actions designed to secure the premises and

protect herself and the public." Smith, 119 Wn.2d at 683.

       In Ellison, officers responded to a 911 report of an unwanted, violent ex-

boyfriend who refused to leave the caller's yard. When the officers searched her

yard, they found the suspect, Ellison, hiding under a mound of blankets covering

the patio furniture. He was sitting in a chair with a backpack between his feet. The

officer ordered him out of the chair and to lie on the ground on his stomach. The


       5
         Smith was abrogated by Byrd, 178 Wn.2d 611, but only as to its claim to establish a
broader rule; we upheld our initial decision that the arrestee's fanny pack was an article of his
person at the time of arrest. Byrd, 178 Wn.2d 622-23.


                                                 10
State v. Brock (Antoine Lamont), No. 90751-0


officer then handcuffed Ellison, questioned him, and ran Ellison's name through

the warrant search system. Once it was confirmed that Ellison had numerous

outstanding arrest warrants, he was formally placed under arrest. Although the

court did not discuss the precise duration, it is quite possible that Ellison was

dispossessed of his backpack several minutes before arrest while the officers ran

his name and information through their system. The Court of Appeals upheld the

search as a valid search incident to arrest, acknowledging that the officers were

reasonably concerned that the backpack might contain a live firearm and that

"leaving it at the scene or transporting it to jail in the trunk of their patrol car

presented an unacceptable safety risk." Ellison, 172 Wn. App. at 722.

       The reviewing courts did not identify the exact duration, but it appears that

in both cases at least a few minutes elapsed between separation and arrest. In this

case, the Court of Appeals found the difference between a few minutes and

approximately 10 minutes dispositive. In so holding, the court reiterated that the

search incident to arrest exception is narrow and that 10 minutes simply cannot

similarly be considered "immediately preceding" arrest.

       The Court of Appeals' analysis misapprehends the purpose of the time of

arrest rule. Although we must draw these exceptions to the warrant requirement

narrowly, we do not draw them arbitrarily; the exception must track its underlying

justification. Because the search incident to arrest rule recognizes the practicalities


                                            11
State v. Brock (Antoine Lamont), No. 90751-0


of an officer having to secure and transport personal items as part of the arrestee's

person, we draw the line of "immediately preceding" with that focus. The proper

inquiry is whether possession so immediately precedes arrest that the item is still

functionally a part of the arrestee's person. Put simply, personal items that will go

to jail with the arrestee are considered in the arrestee's "possession" and are within

the scope of the officer's authority to search.

      Under these circumstances, the lapse of time had little practical effect on

Brock's relationship to his backpack. Brock wore the backpack at the very moment

he was stopped by Officer Olson. The arrest process began the moment Officer

Olson told Brock that although he was not under arrest, he was also not free to

leave. The officer himself removed the backpack from Brock as a part of his

investigation. And, having no other place to safely stow it, Brock would have to

bring the backpack along with him into custody. Once the arrest process had

begun, the passage of time prior to the arrest did not render it any less a part of

Brock.'s arrested person.

       We hold that when the officer removes the item from the arrestee's person

during a lawful Terry stop and the Terry stop ripens into a lawful arrest, the

passage of time does not negate the authority of law justifying the search incident




                                           12
State v. Brock (Antoine Lamont), No. 90751-0


to arrest. We reverse the Court of Appeals.




WE CONCUR:



Yh(j_~.,         t.a   I




                                          13
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)




                                     No. 90751-0

      GORDON McCLOUD, J. (dissenting)-InState v. Byrd, 178 Wn.2d 611,623,

310 P .3d 793 (20 13 ), this court held that law enforcement must constrain their search

of an arrestee's person, incident to arrest, to only "those personal articles in the

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

arrest." This case requires us to interpret the phrase "immediately preceding the

time of arrest" in order to determine the scope of the search incident to arrest

exception to the warrant requirement.

      The majority holds that the exception authorizes the search of a backpack that

the arresting officer reduced to his exclusive possession and control several minutes

before he initiated any custodial arrest. Because this holding is inconsistent with the

principles underlying the narrow search incident to arrest exception, I respectfully

dissent.




                                            1
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


      Under art. I, § 7 of the Washington State Constitution, a warrantless search is

per se unreasonable, subject to a few "carefully drawn and jealously guarded

exceptions to the warrant requirement." State v. Bravo Ortega, 177 Wn.2d 116, 122,

297 P.3d 57 (2013) (citing State v. Afana, 169 Wn.2d 169, 176-77, 233 P.3d 879

(2010); State v. Patton, 167 Wn.2d 379, 386, 219 P.3d 651 (2009)). The search

incident to arrest is one such exception. Byrd, 178 Wn.2d at 616.

      In Byrd, this court reasoned that the search incident to arrest exception

encompassed two distinct applications: a search of the area within the control of the

arrestee and a search of the arrestee's person. I d. at 617 (quoting United States v.

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

court recognized that searches of an area incident to arrest must be supported by

concerns that the arrestee could endanger officer safety or destroy evidence. !d.

(citing Chime! v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)).

But it held that searches of an arrestee's person require nothing more than a valid

custodial arrest and that risks to officer safety and evidence preservation are

presumed when an officer searches an arrestee's "person." !d. at 619-20 (citing

Robinson, 414 U.S. at 224).

      To determine whether an article is considered part of an arrestee's person and

thus per se searchable incident to arrest, this court applies the "time of arrest" rule.


                                           2
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


Byrd, 178 Wn.2d at 620-21. According to this rule, "an article is 'immediately

associated' with the arrestee's person, and can [therefore] be searched under

Robinson" if it is "a personal article[] in the arrestee's actual and exclusive

possession at or immediately preceding the time of arrest." I d. at 621, 623 (emphasis

added).

      In this case, the majority cites two justifications for the "time of arrest" rule,

both of which the majority sees as reasons to approve the search at issue here. First,

the majority argues that under Robinson, 414 U.S. at 224, a custodial arrest so

diminishes the arrestee's expectations of privacy that the arrest itself-absent any

specifically articulated safety or evidence preservation concerns-"provides the

constitutional authority of law justifying the search." Majority at 7. Second, the

majority argues that safety and evidence preservation concerns are always associated

with any item that an officer must transport with the arrestee to the jail. I d. Neither

of these arguments persuades me that we should expand our "time of arrest" rule to

encompass the search at issue in this case.

       The majority's second argument-that an object always poses a danger when

it must be transported to the jail-stems from a misreading of the United States

Supreme Court's decision in United States v. Edwards, 415 U.S. 800, 806, 94 S. Ct.

1234, 39 L. Ed. 2d 771 (1974).        In Byrd, the majority cited Edwards for the


                                           3
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


proposition that "[ w ]hen police take an arrestee into custody, they also take

possession of his clothing and personal effects, any of which could contain [a]

weapon[]." 178 Wn.2d 621 (citing Edwards, 415 U.S. at 806). In this case, the

majority cites that part of Byrd for the proposition that "there are presumptive safety

and evidence preservation concerns associated with ... items ... [that] will ... travel

with the arrestee to jail." Majority at 7-8 (quoting Byrd, 178 Wn.2d at 621). But

Edwards was not a search incident to arrest case. On the contrary, Edwards held

that law enforcement could search an arrestee's belongings several hours after they

were transported to the place of detention. 415 U.S. at 801 ("The question here is

whether the Fourth Amendment should be extended to exclude from evidence

certain clothing taken from respondent Edwards while he was in custody at the city

jail approximately 10 hours after his arrest." (emphasis added)). In fact, Edwards

contradicts rather than supports the assertion that it is inherently dangerous to

transport items before they are searched.

       The majority's other justification for the "time of arrest rule"-the diminution

of the arrestee's privacy expectations-stems from this court's exceedingly broad

interpretation of Robinson. As I explained in my dissent to State v. MacDicken, the

same presumptions govern a search under Chime! and a search under Robinson: the

presumptions that an arrestee may be armed and may destroy evidence. 179 Wn.2d


                                            4
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


936, 945, 319 P.3d 31 (2014). Robinson held that these presumptions apply in every

custodial arrest, even where it is highly unlikely that the arrestee in fact possesses

either arms or destructible evidence. Id. at 945; Riley v. California,_ U.S._, 134

S. Ct. 2473,2483-84, 189 L. Ed. 2d 430 (2014). Thus, under Robinson, officers may

presume that a particular arrestee-even one arrested for a nonviolent traffic

offense-is armed. 414 U.S. at 235. But officers may not presume that this arrestee

can access items safely reduced to law enforcement's exclusive possession and

control--that is an entirely different presumption, which the Supreme Court has

never approved. See United States v. (hadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 53

L. Ed. 2d 53 8 ( 1977) ("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."), abrogated on other grounds by California v.

Acevedo, 500 U.S. 565, 111, S. Ct. 1982, 114 L. Ed. 2d 619 (1991)).

       It is true that some courts have applied Robinson to searches of personal items

larger than the crumpled cigarette package at issue in that case-for example, to the

"billfold and address book[,] . . . wallet[,] . . . [and] purse" recently noted by the

United States Supreme Court in Riley-when these items were "carried by [the]


                                           5
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


arrestee." 134 S. Ct. at 2488 (emphasis added) (citing United States v. Carrion, 809

F.2d 1120, 1123, 1128 (5th Cir. 1987); United States v. Watson, 669 F.2d 1374,

1383-84 (11th Cir. 1982); United States v. Lee, 163 U.S. App. D.C. 330, 501 F.2d

890,892 (1974)). But the Supreme Court has always described Robinson searches-

that is, searches of the person incident to arrest-in extremely narrow terms. E.g.,

id. at 2489 (describing Robinson as permitting a search "of an arrestee's pockets,"

and leaving open the question of what other "physical items" might be searchable

under this exception). And it has always described those searches as '"based upon

the need to disarm and to discover evidence,"' even as it has explained that the

validity of a Robinson search "'does not depend on ... the probability in a particular

arrest situation that weapons or evidence would in fact be found."' I d. at 2483

(quoting Robinson, 414 U.S. at 235).

      This court, by contrast, has incrementally expanded the search incident to

arrest exception-in one line of cases 1-so that it no longer bears any logical

relationship to the safety and evidence preservation concerns that underlie both

Robinson and Chimel. In Byrd, the majority concluded that the defendant's purse

was an extension of her person, even after officers had reduced the purse to their



       1
        This court has taken the opposite approach in recent cases addressing vehicle
searches incident to arrest. See discussion of State v. Valdez, 167 Wn.2d 761, 224 P.3d
751 (2009), infra at pages 9-10, note 4.
                                          6
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


exclusive possession and control, solely because "[t]he purse left Byrd's hands only

after her arrest." 178 Wn.2d at 623-24. Subsequently, in MacDicken, this court

reasoned that arresting officers could search the defendant's laptop bag and rolling

duffel bag, both of which were least a car's length away from the defendant when

officers began the search, because the defendant was holding the bags when the

officers initiated the arrest. 179 Wn.2d at 939. In the present case, the majority

holds that an officer may search a backpack that he reduced to his exclusive

possession and control several minutes before he initiated the arrest. 2 Majority at 2-




       2
         For purposes of this analysis, I assume that Brock was under arrest when Officer
Olson (1) read him his Miranda [v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966)] warnings but (2) did not place him in handcuffs and (3) told him that he was
not necessarily going to jail. See majority at 3. But I note that it is questionable whether
this detention actually rose to the level of a full custodial arrest. See State v. Rivard, 131
Wn.2d 63, 76, 929 P.2d 413 (1997) (finding no arrest occurred where defendant was asked
to not leave but was "not physically apprehended, restrained, handcuffed, placed in the
police vehicle, nor driven to the police station"). A custodial arrest is a prerequisite to any
search incident to arrest. State v. 0 'Neill, 148 Wn.2d 564, 585, 62 P.3d 489 (2003)
("probable cause for a custodial arrest is not enough[; t]here must be an actual custodial
arrest to provide the 'authority' of law justifYing a warrantless search incident to arrest
under article I, section 7"). Thus, for purposes of the search incident to arrest exception,
the earliest possible "time of arrest" in this case was the moment at which Officer Olson
read Brock his Miranda rights.

       In most of its analysis, the majority appears to agree. See majority at 1 ("After a
period of questioning, the officer arrested Brock and then searched the backpack."), 6
("because Brock was separated from his backpack several minutes prior to arrest, the issue
involves the scope of 'immediately preceding arrest"'). But the maJority also refers to
something it calls "[t]he arrest process" and asserts that this process "began the moment
Officer Olson told Brock that although he was not under arrest, he was also not free to
leave." !d. at 12 (emphasis added). To the extent that the majority thereby implies that a
                                               7
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


3. Although the backpack posed no conceivable risk to officer safety or evidence

preservation, the majority holds that the search was proper because, under Robinson,

exigencies are presumed. Id. at 6, 12.

      In addition to misunderstanding the presumption approved in Robinson, this

holding is contrary to two principles governing the search incident to arrest

exception.

      The first principle is that "the proper scope of the time of arrest rule is

narrow, ... [because a search incident to arrest is a] 'jealously guarded exception to

the warrant requirement." Byrd, 178 Wn.2d at 623 (citing Bravo Ortega, 177 Wn.2d

at 122 (emphasis added)). Thus, we have explained that, under article I, section 7

(as opposed to the Fourth Amendment to the United States Constitution), "when a

search can be delayed to obtain a warrant without running afoul of [officer safety

and evidence preservation] concerns ... , the warrant must be obtained." State v.

Valdez, 167 Wn.2d 761, 777, 224 P.3d 751 (2009) (emphasis added). Because

exigencies are presumed in a search incident to arrest, the exception already amounts

to a departure from this court's general disapproval of searches lacking




custodial arrest is not a prerequisite to a search incident to arrest, this is contrary to
established precedent. O'Neill, 148 Wn.2d at 586-87.

                                            8
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


individualized suspicion. 3 Nevertheless, this court's recent cases on the exception

have eschewed any conceivable limiting principle. 4

       The second principle is that a warrantless search incident to arrest is

permissible under Robinson only where '"the degree to which it intrudes upon an

individual's privacy [is outweighed by] ... the degree to which it is needed for the

promotion of legitimate governmental interests."'                Riley, 134 S. Ct. at 2484

(emphasis added) (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct.

1297, 143 L. Ed. 2d 408 (1999)). As the United States Supreme Court recently

explained, "[This] balancing of interests supported the [limited] search incident to

arrest exception in Robinson," id., but "[n]ot every search 'is acceptable solely

because a person is in custody,"' id. at 2488 (quoting Maryland v. King,_ U.S. _,


       3
         See State v. Jorden, 160 Wn.2d 121, 127, 156 P.3d 893 (2007) ("[T]his court has
consistently expressed displeasure with random and suspicionless searches ... .");City of
Seattle v. Mesiani, 110 Wn.2d 454, 458 n.l, 755 P.2d 775 (1988) (holding a random
sobriety checkpoint program invalid under art. I, § 7 because it lacked individualized
suspicion).

       4
         This is particularly troubling in light of the fact that this court has repeatedly
cautioned against the incremental expansion of exceptions to the warrant requirement, lest
the exceptions "swallow what our constitution enshrines." State v. Day, 161 Wn.2d 889,
894, 168 P.3d 1265 (2007); see, e.g., State v. Tibbles, 169 Wn.2d 364, 372, 236 PJd 885
(2010); State v. Garvin, 166 Wn.2d 242, 255, 207 P.3d 1266 (2009). In State v. Valdez,
this court acknowledged that the search incident to arrest exception has been particularly
susceptible to judicial expansion. 167 Wn.2d at 773-7 4. In the context of a vehicle search,
Valdez expressly rejected a justification similar to the one embraced by the majority in this
case: that the fact of a custodial arrest itself justifies a search in all cases. !d. at 777 (citing
State v. Stroud, 106 Wn.2d 144, 175, 720 P.2d 436 (1986) (Durham, J., concurring)).


                                                 9
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


133 S. Ct. 1958, 1979, 186 L. Ed. 2d 1 (2013)). Instead, "when 'privacy-related

concerns are weighty enough' a 'search may require a warrant, notwithstanding the

diminished expectations of privacy of the arrestee."' Id. 5 In today's holding, the

majority declines to perform any balancing at all, opting instead for "a mechanical

application of Robinson," id. at 2484. It thereby avoids the question of whether there

was any possibility, during either search, that Brock could have accessed the

backpack. When there is no such possibility, and where there is no showing that

transporting the bag poses any risk to officer safety, the search does not serve any

"'legitimate governmental interests,"' id. at 2484 (quoting Houghton, 526 U.S. at

300), and the balance tips in favor of privacy.

       In this case, the arresting officer did not articulate any safety or evidence

preservation concerns to justify either search of Brock's backpack. Clerk's Papers

(CP) at 63 (trial court's findings of fact and conclusions of law) ("the backpack was



       5
          Thus, for example, law enforcement must obtain a warrant to search luggage
seized incident to arrest when that luggage poses no conceivable danger to officer safety
or evidence preservation. Chadwick, 433 U.S. at 15-16; see also Riley, 134 S. Ct. at 2485
(cell phones generally not subject to search incident to arrest since privacy interest in cell
phone's contents outweighs government's interest in searching phone incident to arrest);
Illinois v. Lafayette, 462 U.S. 640, 645, 103 S. Ct. 2605,77 L. Ed. 2d 65 (1983) (reasoning
that "the interests supporting a search incident to arrest would hardly justify disrobing an
arrestee on the street ... "); Chime!, 395 U.S. at 767 n.12 ("[W]e can see no reason why,
simply because some interference with an individual's privacy and freedom of movement
has lawfully taken place, further intrusions should automatically be allowed despite the
absence of a warrant that the Fourth Amendment would otherwise require.").

                                             10
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


not within the defendant's reach; it was in the control of the officer and the officer

articulated neither an officer safety reason for searching the backpack nor an

evidence destruction justification for doing so"). Indeed, Officer Olson specifically

testified that when he performed the first search of the backpack, Brock was too far

away to access it. And when Officer Olson conducted the second search, Brock was

confined to "a Plastiglas cage [sic] inside [the officer's] patrol vehicle." Verbatim

Report of Proceedings (June 14, 2011) at 7. After listening to all the testimony, the

trial court concluded that "[t]he officer clearly believed he could search the backpack

because the defendant was under arrest, period." Id. at 10.

      Because the majority embraces this expansive view of the search incident to

arrest exception-the view that an officer may search an arrestee's personal effects

"because the [arrestee] was under arrest, period"-! respectfully dissent. In keeping

with the narrow scope of the search incident to arrest exception, I would construe

the phrase "at or immediately preceding the time of arrest," Byrd, 178 Wn.2d at 623,

to encompass only those personal items that the arrestee possessed and controlled

between the initiation and conclusion of a full custodial arrest.

       Not all arrests are resolved instantaneously, as in State v. Smith, where a police

officer chased after and tackled the defendant before she could arrest him. 119

Wn.2d 675, 677, 835 P.2d 1025 (1992); see State v. Patton, 167 Wn.2d 379, 384-85,


                                           11
State v. Brock (Antoine Lamont), No. 907 51-0
(Gordon McCloud, J., Dissenting)


388, 219 P.3d 351 (2009) (finding that the defendant was under arrest from the

moment that law enforcement announced their intent to arrest him, even though

defendant fled from law enforcement and was therefore not immediately secured in

custody).      After the officer arrested the defendant in Smith, she collected and

searched a fanny pack that had fallen from the defendant's body during the struggle.

119 Wn.2d at 677. This court reasoned that the defendant "was in actual physical

possession of the fanny pack just prior to the arrest" and held that the pack was

therefore validly searched incident to arrest. !d. at 682. Under the rule I would adopt

in today's case, the search of the fanny pack in Smith would be a lawful search

incident to arrest because the defendant actually possessed the pack when the arrest

was initiated, even though he lost possession while he attempted to evade the

arresting officer. Id. All of the searches in the cases cited by the majority would be

upheld as proper searches incident to arrest under my proposed rule. 6

      Rather than adopting this narrow rule, the majority holds that officers may

conduct a warrantless search of any item seized from an arrestee during a Terry7 stop


       6
         MacDicken, 179 Wn.2d at 942 (items searched were in defendant's possession at
the time that officers initiated the arrest); Byrd, 178 Wn.2d at 614 (defendant's purse was
in her lap at the time she was arrested); State v. Ellison, 172 Wn. App. 710, 718, 291 P .3d
921 (20 13) (defendant was in "possession and control" of a backpack at his feet at the time
ofhis arrest), review denied, 180 Wn.2d 1014, 327 P.3d 55 (2014).

       7
           Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

                                              12
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


that matures into a full custodial arrest. Majority at 12-13. In other words, the

majority interprets the phrase "at or immediately preceding the time of arrest," Byrd,

178 Wn.2d at 623, to mean "at or immediately preceding the time of a Terry stop

that ripens into an arrest." In essence, it announces a new exception to the warrant

requirement: the search incident to a Terry stop.

       This holding ignores the strict limitations imposed on law enforcement during

a Terry stop, 8 confuses the justifications for a Terry frisk with the justifications for

a search incident to arrest, 9 and conflicts with our precedent holding that a full



       8
         See also Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 124 L. Ed.
2d 334 (1993) ("A [Terry frisk] ... must be strictly 'limited to what is necessary for the
discovery ofweapons."' (quoting Terry, 392 U.S. at 26)); Florida v. Royer, 460 U.S. 491,
499, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) ("Terry and its progeny ... created only
limited exceptions to the general rule that seizures of the person require probable cause to
arrest."); Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979)
("Nothing in Terry can be understood to allow a generalized 'cursory search for weapons'
or, indeed, any search whatever for anything but weapons."); Dunaway v. New York, 442
U.S. 200, 210, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) ("the [Terry court] approve[d] [the]
narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but
only for the purpose of a pat-down for weapons"); Sib ron v. New York, 392 U.S. 40, 65, 88
S. Ct. 1889,20 L. Ed. 2d 917 (1968) ("The search for weapons approved in Terry consisted
solely of a limited patting of the outer clothing of the suspect for concealed objects which
might be used as instruments of assault.").                              ·

       9
         See State v. Kennedy, 107 Wn.2d 1, 12, 726 P.2d 445 (1986) ("In contrast to an
arrest, a Terry stop does not present the same dangers to the police officer or to evidence
of a crime .... [R]aising the stakes of a Terry stop would necessarily increase the volatility
in that police-citizen encounter."); compare Terry, 392 U.S. at 29 ("The sole justification
of the [Terry] search ... is the protection of the police officers and others nearby .... "),
with Robinson, 414 U.S. at 234 ("The justification ... for the authority to search incident
to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him
into custody as it does on the need to preserve evidence on his person for later use at trial.'').
                                               13
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)


custodial arrest is a prerequisite to any search incident to arrest. 10 I fear the

majority's new rule will only invite further expansions of our "narrow" and

'"jealously guarded' exception to the warrant requirement." Byrd, 178 Wn.2d at 623

(citing Bravo Ortega, 177 Wn.2d at 122).

      For these reasons, I respectfully dissent.




       10
          0 'Neill, 148 Wn.2d at 586-87 (custodial arrest is a prerequisite to search incident
to arrest even where officer has probable cause to arrest before conducting the search).
                                             14
State v. Brock (Antoine Lamont), No. 90751-0
(Gordon McCloud, J., Dissenting)




                                       15
