      FILE
      IN CLERKS OFFICE
IIJIII~COURT,   STATE OF WASHINQ10N
                   . 1 0 2013




  IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,

                                      Petitioner,   NO. 86399-7

                  v.                                ENBANC

LISA ANN BYRD,
                                                    Filed    OCT l 0 2013
                                      Respondent,


       STEPHENS, J.-This case concerns the search of an arrestee's purse

incident to her arrest. The decisive question is whether the search of Lisa Byrd's

purse was a search of her person. Because the purse was in her lap when she was

arrested, it was an article of her person under the long standing "time of arrest"

rule. Neither the United States Supreme Court's decision in Arizona v. Gant, 556

U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), nor our decision in State v.

Valdez, 167 Wn.2d 761, 224 P.3d 751 (2009), restricts searches ofthe arrestee's

person. If the arrest was lawful, the arresting officer was entitled to search Byrd's

person and articles closely associated with her person without showing the search
State v. Byrd (Lisa Ann), 86399-7




was motivated by particularized concerns for officer safety or evidence

preservation. We reverse the Court of Appeals and remand for further proceedings

in the trial court.

                      FACTS AND PROCEDURAL HISTORY

        On the evening of November 17, 2009, Yakima Police Officer Jeff Ely (Ely)

ran the plates on a Honda Civic he observed parked on the side of the road.

Clerk's Papers (CP) at 5; Verbatim Transcript of Hearing (VTH) at 4.                Ely

determined that the plates were registered to an Acura Integra. VTH at 4-5. He

contacted the plate's owner, who confirmed that they were stolen. Id. at 11-12.

During Ely's investigation, Lisa Ann Byrd, and a companion, entered the Civic and

drove away, with Byrd's companion driving. Id. at 5. Ely initiated a felony traffic

stop.   Id. at 5, 14. He arrested and secured the driver, who claimed the car
belonged to Byrd. Id. at 14-15.

        Ely returned to the car and placed Byrd under arrest for possession of stolen

property. Id. at 15. At the time of her arrest, Byrd sat in the front passenger seat

with her purse in her lap. Id. at 6, 16. Before removing Byrd from the car, Ely

seized the purse and set it on the ground nearby. Id. at 6, 17. He secured Byrd in a

patrol car and returned to the purse within "moments" to search it for weapons or

contraband.      Id. at 6.   Inside a sunglasses case in Byrd's purse, Ely found

methamphetamine. Id. at 7.

        At the suppression hearing, the trial court conceded that "[t]he facts here fall

slightly outside of being completely on point with Gant and Valdez" but


                                           -2-
State v. Byrd (Lisa Ann), 86399-7




nonetheless concluded that the search of Byrd's purse was valid only if it was

motivated by concerns for officer safety or evidence preservation, as described in

these cases. CP at 4. The trial court's questioning of Ely focused on whether these

exigencies were present. See VTH at 19-20 ("[W]as there any concern ... that she

would be able to either access a weapon in the purse or destroy any evidence that

might be in the purse?"). Because Byrd was secured and unable to access the

purse, the court held Ely's search was unlawful and granted Byrd's motion to

suppress. CP at 4, 6.

       The Court of Appeals agreed, holding that the search of Byrd's purse had to

be justified by concerns for evidence preservation or officer safety. State v. Byrd,

162 Wn. App. 612, 615-16, 258 P.3d 686 (2011) (citing Gant, 556 U.S. at 343;

Valdez, 167 Wn.2d at 780 (J.M. Johnson, J., concurring)). Because Byrd was

restrained and could not obtain a weapon from or destroy evidence in her purse

when Ely searched it, the court affirmed the trial court's order suppressing the

fruits of the search. Id. at 617. We granted review. State v. Byrd, 173 Wn.2d

1001, 268 P.3d 942 (2011).

                                    ANALYSIS

       Byrd asserts that the search of her purse violated the Fourth Amendment to

the United States Constitution and article I, section 7 of the Washington State

Constitution. The Fourth Amendment provides that "[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures."    U.S. CONST. amend. IV.       Article I, section 7 does not turn on


                                         -3-
State v. Byrd (Lisa Ann), 86399-7




reasonableness, instead guaranteeing that "[n]o person shall be disturbed in his

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

I,§ 7.

         Article I, section 7 is more protective of individual privacy than the Fourth

Amendment, and we turn to it first when both provisions are at issue. State v.

Ortega, 177 Wn.2d 116, 122, 297 P.3d 57 (2013) (citing State v. Walker, 157

Wn.2d 307,313, 138 P.3d 113 (2006)); State v. Afana, 169 Wn.2d 169, 176,233

P.3d 879 (2010).       Under article I, section 7, a warrantless search is per se

unreasonable unless the State proves that one of the few "carefully drawn and

jealously guarded exceptions" applies. Ortega, 177 Wn.2d at 122 (citing Afana,

169 Wn.2d at 176-77; State v. Patton, 167 Wn.2d 379, 386,219 P.3d 651 (2009)).

         At issue here is the search incident to arrest exception.      We begin by

describing the origins and operation of the two discrete branches of this exception.

         The Search Incident to Arrest Exception to the Warrant Requirement

         The search incident to arrest embraces not one but two analytically distinct

concepts under Fourth Amendment and article I, section 7 jurisprudence.             In

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

(1973), the United States Supreme Court explained that the exception "has

historically been formulated into two distinct propositions."

         The first of these propositions is that "a search may be made of the area

within the control of the arrestee." I d. In Chime! v. California, 395 U.S. 752, 89

S. Ct. 2034, 23 L. Ed. 2d 685 (1969), the Court held that these searches must be


                                           -4-
State v. Byrd (Lisa Ann), 86399-7




justified by concerns that the arrestee might otherwise access the article to obtain a

weapon or destroy evidence. New York v. Belton, 453 U.S. 454, 459-61, 101 S. Ct.

2860, 69 L. Ed. 2d 768 (1981), was a short-lived exception to Chime! that

permitted police to search the interior of a car incident to an occupant's arrest

without demonstrating concerns for officer safety or evidence preservation.

However, in Gant, 556 U.S. at 335, the Court overruled Belton, holding that all

searches of an arrestee's surroundings, including the interior of a car, must comply

with Chime!. Searches of an arrestee's surroundings require the same justifications

under article I, section 7. Valdez, 167 Wn.2d at 777; Patton, 167 Wn.2d at 386;

see State v. Snapp, 174 Wn.2d 177, 188-89, 275 P.3d 289 (2012) (citing Chime!,

395 U.S. at 762-63).

       Under the second proposition of the search incident to arrest, "a search may

be made of the person of the arrestee by virtue of the lawful arrest." Robinson,

414 U.S. at 224.       In Robinson, the Court held that under "the long line of

authorities of this Court dating back to Weeks [v. United States, 232 U.S. 383, 34

S. Ct. 341, 58 L. Ed. 652 (1914)]" and "the history of practice in this country and

in England," searches of an arrestee's person, including articles of the person such

as clothing or personal effects, require "no additional justification" beyond the

validity of the custodial arrest. 414 U.S. at 235. Instead, a search of the arrestee's

person is "not only an exception to the warrant requirement of the Fourth

Amendment, but is also a 'reasonable' search under that Amendment." ld.




                                          -5-
State v. Byrd (Lisa Ann), 86399-7




      Unlike searches of the arrestee's surroundings, searches of the arrestee's

person and personal effects do not require "a case-by-case adjudication" because

they always implicate Chime! concerns for officer safety and evidence

preservation. ld. Thus, their validity "does not depend on what a court may later

decide was the probability in a particular arrest situation that weapons or evidence

would in fact be found upon the person of the suspect." I d.; see Virginia v. Moore,

553 U.S. 164, 176-77, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008) (holding "[t]he

interests justifying search are present whenever an officer makes an arrest").

       The authority to search an arrestee's person and personal effects flows from

the authority of a custodial arrest itself. Robinson, 414 U.S. at 232 (noting "'[t]he

peace officer empowered to arrest must be empowered to disarm.             If he may

disarm, he may search, lest a weapon be concealed'" (quoting People v. Chiagles,

237 N.Y. 193, 197, 142 N.E. 583, 584 (1923) (Cardozo, J.))); see State v. Hehman,

90 Wn.2d 45, 49-50, 578 P.2d 527 (1978) (recognizing an arresting officer's

"unqualified authority" under Robinson to search the arrestee's person pursuant to

lawful arrest).

       Because this exception is rooted in the arresting officer's lawful authority to

take the arrestee into custody, rather than the "reasonableness" of the search, it also

satisfies article I, section 7's requirement that incursions on a person's private

affairs be supported by "authority of law." See State v. Grande, 164 Wn.2d 135,

139, 187 P.3d 248 (2008) (holding "an arrest gives 'authority of law' to search,

except where the arrest itself is unlawful" (citing State v. Parker, 139 Wn.2d 486,


                                          -6-
State v. Byrd (Lisa Ann), 86399-7




987 P.2d 73 (1999))). Indeed, in State v. Ringer, 100 Wn.2d 686, 691-92, 674 P.2d

1240 (1983), we noted that at the time the Washington constitution was adopted, it

was "universally recognized that warrantless searches were allowed of the person

of an arrestee when incident to lawful arrest" (citing State ex rel. Murphy v. Brown,

83 Wash. 100, 105-06, 145 P. 69 (1914)). And in State v. Hughlett, 124 Wash.

366, 370, 214 P. 841 (1923), overruled on other grounds by Ringer, 100 Wn.2d at

695, 699, we held that "a peace officer, when he makes a lawful arrest, may

lawfully, without a search warrant, search the person arrested and take from him

any evidence."

       This court has long recognized the distinction between searches of the

arrestee's person and surroundings. In Parker, 139 Wn.2d at 510, we explained

that the rules of Chimel and Robinson are distinct because "Chimel applies to the

area within the immediate control of the arrestee and Robinson to the person of the

arrestee." In State v. Johnson, 155 Wn. App. 270, 282, 229 P.3d 824 (2010), the

Court of Appeals reaffirmed this distinction, holding that the search of an

arrestee's purse was a search of her person, not a search of her vehicle.

Notwithstanding the deep historical roots of these two doctrines, the Court of

Appeals in this case overruled Johnson, dismissing the distinction between

searches of a vehicle and searches of the arrestee's person and opining that "[a]

search incident to an arrest is a search incident to an arrest whether the object

searched is a car or a purse." Byrd, 162 Wn. App. at 617.




                                         -7-
State v. Byrd (Lisa Ann), 86399-7




      The Court of Appeals erred.          Johnson is consistent with Robinson and

remains good law because neither Gant nor Valdez requires case-specific showings

of officer safety or evidence preservation to justify the search of an arrestee's

person. 1 Indeed, neither Gant nor Valdez (nor any of the cases they rely on or

support) even cite to Robinson except in passing. This is no surprise, as these

cases deal only with searches of the area immediately around the arrestee, not

searches of the arrestee's person. See Gant, 556 U.S. at 336 (search of jacket in

backseat outside driver's control); Belton, 453 U.S. at 462 (search of vehicle

interior); Afana, 169 Wn.2d at 174 (same); Snapp, 174 Wn.2d at 182-86 (same);

Valdez, 167 Wn.2d at 768-78 (same); Patton, 167 Wn.2d at 382 (same); State v.

Stroud, 106 Wn.2d 144, 145-46, 720 P.2d 436 (1986) (same); Ringer, 100 Wn.2d

at 688, 697 (same).

       The lower courts in this case erred by conflating the two distinct branches of

the search incident to arrest exception and the dissent would perpetuate the error.

Although the dissent concedes that custodial arrest "always justifies a search of the

arrestee's person," it complains that the officer "could have delayed the search"

because no exigencies were present. Dissent at 7, 8. This complaint overlooks the

       1
         The Third Circuit is apparently alone in its belief that Gant applies to searches of
an arrestee's personal articles. See United States v. Shakir, 616 F.3d 315, 318 (3d Cir.
2010). The Ninth Circuit does not agree and reads Shakir narrowly. See United States v.
Gordon, 895 F. Supp. 2d 1011, 1018-19 (D. Haw. 2012). Other courts have not taken up
Shakir on this point, and we are unable to find additional authority for this view. See
State v. Ellis, 355 S.W.3d 522, 524 (Mo. Ct. App. 2011) (noting the lack of"any reported
federal or state appellate opinion that has extended Gant to the search of an arrestee's
personal effects, such as a purse or backpack, that are on the person of an arrestee at the
time of the arrest").


                                             -8-
State v. Byrd (Lisa Ann), 86399-7




fact that exigencies are presumed when an officer searches an arrestee's person.

The search incident to arrest rule respects that an officer who takes a suspect into

custody faces an unpredictable and inherently dangerous situation and that officers

can and should put their safety first. Neither Cant nor Valdez circumscribed the

State's authority to search an arrestee's person, and these searches remain valid

under the Fourth Amendment and article I, section 7 so long as they are incident to

a lawful custodial arrest, whatever exigencies the dissent perceives in hindsight.

Assuming Ely had probable cause to arrest Byrd, the search of her purse was valid

if it was a search of an article of her person, as discussed below.

       The "Time of Arrest" Rule

       Whether a search incident to arrest is governed by Chime! or Robinson turns

on whether the item searched was an article of the arrestee's person. See United

States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 2486, 53 L. Ed. 2d 538 (1977)

(requiring Chime! justification only for searches of "personal property not

immediately associated with the person of the arrestee" (emphasis added)),

overruled on other grounds by California v. Acevedo, 500 U.S. 565, 111 S. Ct.

1982, 114 L. Ed. 2d 619 (1991). Many courts, including Washington courts, draw

a bright line between these two prongs of the search incident to arrest exception

with the "time of arrest" rule.

       Under this rule, an article is "immediately associated" with the arrestee's

person and can be searched under Robinson, if the arrestee has actual possession of

it at the time of a lawful custodial arrest. See United States v. Oakley, 153 F.3d


                                          -9-
State v. Byrd (Lisa Ann), 86399-7




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, 367 Md. 447, 788 A.2d 646,

655 (2002) (lunch bag); State v. Ellis, 355 S.W.3d 522, 524-25 (Mo. Ct. App.

2011) (backpack); People v. Brown, 36 A.D.3d 931, 828 N.Y.S.2d 550, 551 (2007)

(backpack); People v. Boff, 766 P.2d 646, 651-52 (Colo. 1988) (backpack). See

generally Andrea G. Nadel, Annotation, Lawfulness of Warrantless Search of

Purse or Wallet of Person Arrested or Suspected of Crime, 29 A.L.R.4TH § 3[a], at

780 (1984 & 2012 Supp.) (collecting cases).

       The time of arrest rule reflects the practical reality that a search of the

arrestee's "person" to remove weapons and secure evidence must include more

than his literal person. In United States v. Graham, 638 F.2d 1111, 1114 (7th Cir.

1981), the court explained that "[t]he human anatomy does not naturally contain

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

conveniently carried." When police take an arrestee into custody, they also take

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

weapons and evidence. See United States v. Edwards, 415 U.S. 800, 806, 94 S. Ct.

1234, 39 L. Ed. 2d 771 (1974) (observing that "the police had lawful custody of

[the suspect] and necessarily of the clothing he wore"). The time of arrest rule

recognizes that the same exigencies that justify searching an arrestee prior to




                                       -10-
State v. Byrd (Lisa Ann), 86399-7




placing him into custody extends not just to the arrestee's clothes, however we

might define them, but to all articles closely associated with his person. 2

      Washington courts have long applied this rule, holding that searches of

purses, jackets, and bags in the arrestee's possession at the time of arrest are lawful

under both the Fourth Amendment and article I, section 7. In State v. Bonds, 17 4

Wn. App. 553, 569-70, 299 P.3d 663, 671-72 (2013), the Court of Appeals

correctly reasoned that searches of an arrestee's person were untouched by Gant

and Valdez, and that a warrantless search of the arrestee's personal effects satisfies

both the Fourth Amendment and article I, section 7. This was entirely consistent

with Hughlett, 124 Wash. at 370, in which we reasoned that "[i]f a search may be

made of the person or clothing ofthe person lawfully arrested, then it would follow

that a search may also be properly made of his grip or suitcase which he may be

carrying." See Parker, 139 Wn.2d at 498-99 (recognizing that under article I,

section 7, "[p]ersonal items may be 'so intimately connected with' an individual

that a search of the items constitutes a search of the person" (quoting State v. Hill,

123 Wn.2d 641, 644, 870 P.2d 313 (1994))); State v. Smith, 119 Wn.2d 675,681,

835 P.2d 1025 (1992) (finding search incident to arrest lawful under the Fourth

Amendment if "the object searched was within the arrestee's control when he or

she was arrested"); Ringer, 100 Wn.2d at 697 (recognizing under article I, section

7 "[the] right to search and seize without a search warrant extends to things under

       2
        The dissent concedes the necessity for this rule, but disavows its application to
Byrd without offering a competing test. Dissent at 7-8.


                                          -11-
State v. Byrd (Lisa Ann), 86399-7




the accused's immediate control"); see also State v. Salinas, 169 Wn. App. 210,

220-22, 279 P.3d 917 (2012) (collecting cases, and holding under article I, section

7, "[t]he fact of a lawful arrest is enough by itself to justify a warrantless search of

the person," including "clothing and personal possessions closely associated with

clothing"), review denied, 176 Wn.2d 1002 (2013); State v. Seitz, 86 Wn. App.

865, 869, 941 P.2d 5 (1997) (holding that officers could lawfully search an

arrestee's purse, but not a purse belonging to a nonarrested passenger).

       We caution that the proper scope of the time of arrest rule is narrow, in

keeping with this "jealously guarded" exception to the warrant requirement.

Ortega, 177 Wn.2d at 122.           It does not extend to all articles in an arrestee's

constructive possession, but only those personal articles in the arrestee's actual and

exclusive possession at or immediately preceding the time of arrest. Some of our

cases contain dicta, based on loose language from Belton, suggesting that the rule

covers articles within the arrestee's reach. See, e.g., Smith, 119 Wn.2d at 681-82

(holding correctly that an arrestee's purse is an article of her person, but claiming a

broader rule).   This suggestion is incorrect.       Searches of the arrestee's person

incident to arrest extend only to articles "in such immediate physical relation to the

one arrested as to be in a fair sense a projection of his person." United States v.

Rabinowitz, 339 U.S. 56, 78, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J.,

dissenting) (describing the historical limits of the exception). Extending Robinson

to articles within the arrestee's reach but not actually in his possession exceeds the

rule's rationale and infringes on territory reserved to Gant and Valdez.


                                            -12-
State v. Byrd (Lisa Ann), 86399-7




      Here, Byrd's purse was unquestionably an article "immediately associated"

with her person.     As the dissenting judge in the Court of Appeals astutely

observed, "the purse was within Ms. Byrd's reach and could even be described as

on her person, not only at the stop but at the time of arrest." Byrd, 162 Wn. App.

at 618 (Brown, J., dissenting). The purse left Byrd's hands only after her arrest,

when Ely momentarily set it aside. There was no "significant delay between the

arrest and the search" that would "render[] the search unreasonable." Smith, 119

Wn.2d at 683; see Chadwick, 433 U.S. at 15 (rejecting search of a footlocker more

than an hour after arrest as too remote in time and place). Assuming Ely had

probable cause to place Byrd under arrest, he had lawful authority to remove her

and all articles closely associated with her person from the car, and the search was

valid under the Fourth Amendment and article I, section 7.

       Byrd's assertion that "[a]bsent the forced removal" her purse was

"associated with the vehicle," either overlooks the time of arrest rule or asks us to

tacitly overrule it. Br. of Resp't at 10. Byrd cites no authority for the claim that

she could have shed the purse after being placed under arrest, and her proposed

rule has no limits. If an officer cannot prevent an arrestee from leaving her purse

in a car, what of other personal articles, such as an arrestee's jacket, baggie of

drugs, or concealed firearm?        We reject Byrd's claim and hold that if Ely had

authority to seize Byrd and place her under custodial arrest, he also had authority

to seize articles of her person, including her clothing and purse that were in her

possession at the time of arrest.


                                           -13-
State v. Byrd (Lisa Ann), 86399-7




       Finally, Byrd asks us to hold that the purse was within a special zone of

protection because it was "located in the car's constitutionally protected interior."

Br. of Resp't at 12.        This misstates the 1ssue.      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 Chime!. Gant,

556 U.S. at 343 (citing Chimel, 453 U.S. at 460). These protections are no broader

than Chimel and do not include the arrestee's person or her personal articles, even

if the arrestee is in a car at the time of arrest.

       Police may not evade Gant by removing an article from a car before

searching it, but this is not because the federal and state constitutions specially

protect articles in cars. It is because, under Chimel, the State must justify the

warrantless search of every article not on the arrestee's person or closely associated

with the arrestee's person at the time of his or her arrest. The distinction does not

turn on whether a person is arrested in a car, on the street, or at home, but on the

relationship of the article to the arrestee. See Robinson, 414 U.S. at 220 (search of

the person or vehicle occupants); Chimel, 395 U.S. at 753-54 (search of arrestee's

home).     Here, if Byrd's arrest was lawful, the search of her purse was both

reasonable and supported by authority oflaw. 3


       3
         As Justice Gonzalez notes in his concurrence, the circumstances of Byrd's arrest
raise a question about whether Ely had probable cause to place Byrd under arrest on the
word of the driver and thus whether the search of her purse was supported by the
authority of a lawful arrest. Byrd raised this issue at the Court of Appeals, but that court
did not address it, having found the search invalid under Gant and Valdez. On remand,
nothing precludes the trial court from considering Byrd's challenge. See State v. Stein,


                                             -14-
State v. Byrd (Lisa Ann), 86399-7




                                    CONCLUSION

      The search incident to arrest exception encompasses two distinct rationales.

A search of the arrestee's immediate area must be justified by concerns for officer

safety or evidence preservation, while a search of the arrestee's person and articles

of his or her person is justified by the authority of a lawful arrest.

       We rely on the time of arrest rule and hold that because Byrd's purse was on

her lap at the time of her arrest, it was an article of her person. If Ely had probable

cause to arrest Byrd, his search of her purse was lawful under the Fourth

Amendment and article I, section 7. We reverse the Court of Appeals and remand

for further proceedings in the trial court.




144 Wn.2d 236, 248, 27 P.3d 184 (2001) (allowing consideration of additional arguments
on remand).


                                              -15-
State v. Byrd (Lisa Ann), 86399-7




WE CONCUR:




                                    -16-
State v. Byrd (Lisa Ann), 86399-7 (Gonzalez, J. concurring)




                                            No. 86399-7

       GONZALEZ, J. (concurring)-Ijoin the majority opinion; if the arrest was

lawful, the arresting officer was entitled to search Lisa Byrd's purse-which she was

holding on her lap when she was arrested-without showing the search was motivated

by particularized concerns for officer safety or evidence preservation. Majority at 1-2,

8, 12. I write separately to stress that the record before this court presents serious

doubt as to whether the officer had probable cause to arrest Byrd for possession of

stolen property.

       Police officers have the authority to make warrantless arrests based on probable

cause, which "exists when the arresting officer is aware of facts or circumstances,

based on reasonably trustworthy information, sufficient to cause a reasonable officer

to believe a crime has been committed" by the person to be arrested. State v. Gaddy,

152 Wn.2d 64, 70, 93 P.3d 872 (2004) (emphasis omitted) (citing State v. Terrovona,

105 Wn.2d 632, 643, 716 P.2d 295 (1986)). The test for probable cause "is one of

reasonableness, considering the time, the place, and the pertinent circumstances."

Plancich v. Williamson, 57 Wn.2d 367, 375, 357 P.2d 693 (1960).

       Based on the information from dispatch and Officer Ely's contact with the
State v. Byrd (Lisa Ann), 86399-7 (Gonzalez, J. concurring)


registered owner of the license plates on the car, Officer Ely had probable cause to

believe the license plates were stolen. What is lacking in the record before us is

reasonably trustworthy information that Byrd had anything to do with the theft of the

plates. Officer Ely arrested Byrd for possessing stolen property (the license plates)

after the driver of the vehicle pointed his finger at her as the owner. Byrd's mere

presence as a passenger in the vehicle and the driver's uncorroborated statement were

the only facts associating Byrd with criminal activity, and by themselves were

insufficient to establish probable cause that Byrd knowingly possessed the stolen

plates.

          Essentially, the officer arrested Byrd on the word of an informant. In such

cases, the constitutional criteria for determining probable cause are measured by the

two-pronged Aguilar-Spinelli 1 test. State v. Lyons, 174 Wn.2d 354, 359 n.l, 275 P.3d

314 (2012) (citing State v. Jackson, 102 Wn.2d 432, 443, 688 P.2d 136 (1984)).

Under the test, "probable cause will exist only if the informant's basis of knowledge

and veracity have been demonstrated or if the substance of the tip has been verified by

independent investigation." State v. Murray, 110 Wn.2d 706, 711, 757 P.2d 487

(1988) (citing State v. Huft, 106 Wn.2d 206, 209-10, 720 P.2d 838 (1986)); see also

State v. Jackson, 102 Wn.2d 432, 436-38, 688 P.2d 136 (1984). The veracity prong

may be satisfied if the credibility of the informant is established, but in the absence of

information about the informant, the facts and circumstances surrounding the

1
    393 U.S. 410, 89 S. Ct. 584,21 L. Ed. 2d 637 (1969)
                                                 2
State v. Byrd (Lisa Ann), 86399-7 (Gonzalez, J. concurring)


furnishing of the information may support a reasonable inference that the informant is

telling the truth. State v. Lair, 95 Wn.2d 706, 709-10, 630 P.2d 427 (1981) (citing

State v. Thompson, 13 Wn. App. 526, 530, 536 P.2d 683 (1975); State v. Johnson, 17

Wn. App. 153, 155, 561 P.2d 701 (1977)). Various factors can contribute to an

inference that an informant is telling the truth, including an informant's willingness to

be named and stand publicly by his or her information and an informant's admission

against his or her own penal interest. See State v. Chamberlin, 161 Wn.2d 30, 41-42,

162 P.3d 389 (2007); State v. Chenoweth, 160 Wn.2d 454,483-84, 158 P.3d 595

(2007); Lair, 95 Wn.2d at 711.

       Here, the information from the driver was not furnished under circumstances

giving reasonable assurances of trustworthiness. Although eventually arrested on

outstanding warrants, the driver was initially removed from the car and detained for

possession of stolen property. At that time, while on the ground, the driver "told

[Officer Ely] several times the car was not his" and was "very adamant, very excited

that it was not his car." Verbatim Transcript of Hearing at 5, 13-14. He said that

Byrd had asked him to drive the car away after they saw the officer checking the

vehicle identification number. Id. at 13. At that time, the driver had a significant

motive to lie to attempt to deflect the blame from himself. His uncorroborated

statement does not pass muster under the Aguilar-Spinelli standard. Additional

circumstances either establishing the driver's reliability or independently associating

Byrd with criminal activity are required to establish probable cause; otherwise

                                                3
State v. Byrd (Lisa Ann), 86399-7 (Gonzalez, I. concurring)


individuals are left susceptible to scapegoating and the consequent unreasonable

interference with their liberties. See United States v. DiRe, 332 U.S. 581, 587, 68 S.

Ct. 222, 92 L. Ed. 210 (1948) (a person does not, "by mere presence in a suspected

car, lose[] immunities from search of his person to which he would otherwise be

entitled'').

        As the majority opinion notes, nothing precludes the trial court from

considering the probable cause issue on remand. Majority at 14 n.3. If Byrd's arrest

was unlawful, the search incident to arrest exception to the warrant requirement does

not apply and the evidence must be suppressed.




                                                4
State v. Byrd (Lisa Ann), 86399-7 (Gonzalez, J. concurring)




                                                5
State v. Byrd, No. 86399-7
Fairhurst, J. dissenting




                                   No. 86399-7


      FAIRHURST, J. (dissenting)-The majority expancls- the scope of the search

incident to arrest exception beyond the limits permitted by the Washington State

Constitution. The majority reverses the trial court and the Court of Appeals and

allows evidence found in a glasses case in a purse that the officer removed from an

arrestee sitting in a car and evidence only found when the purse was searched after

securing the arrestee in a police vehicle. The Court of Appeals affirmed the

suppression of the evidence based on federal constitutional grounds. State v. Byrd,

162 Wn. App. 612, 258 P.3d 686 (2011). I would affirm based on state

constitutional grounds.

      Article I, section 7 of the Washington State Constitution provides that "[n]o

person shall be disturbed in his private affairs, or his home invaded, without

authority of law." The parallel provision of the United States Constitution, the

Fourth Amendment, reads:

      The right of the people to be secure in their persons, houses, papers,
      and effects, against unreasonable searches and seizures, shall not be
                                         1
State v. Byrd, No. 86399-7
Fairhurst, J. dissenting


      violated, and no warrants shall issue, but upon probable cause,
      supported by oath or affirmation, and particularly describing the place
      to be searched, and the persons or things to be seized.

When a defendant challenges a search under both the state and federal

constitutions, as Lisa Ann Byrd has done here, we examine the permissibility of

the search under article I, section 7 first. Br. of Resp't at 8; City of Seattle v.

Mesiani, 110 Wn.2d 454, 456, 755 P.2d 775 (1988). If the search is invalid under

article I, section 7, any inquiry into the validity of the search "begins and ends"

with the state constitution. State v. Parker, 139 Wn.2d 486, 493, 987 P.2d 73

(1999). 1

       Though both prov1s10ns govern law enforcement's power to search and

seize, article I, section 7 differs from the Fourth Amendment by guarding against

unauthorized invasions of privacy rather than unreasonable searches or seizures.

Article I, section 7, "unlike any provision in the federal constitution, explicitly

protects the privacy rights of Washington citizens and these privacy rights include

the freedom from warrantless searches absent special circumstances." State v.




       1
         Many of our cases, like Parker, discuss the search incident to arrest exception in the
context of searches of an automobile incident to arrest. While we have sometimes discussed the
automobile search incident to arrest exception, this is merely an application of the search
incident to arrest exception and not a separate doctrine. State v. Patton, 167 Wn.2d 379, 386 &
n.4, 219 P.3d 651 (2009). Hence, these cases guide our discussion of the general search incident
to arrest exception.
                                               2
State v. Byrd, No. 86399-7
Fairhurst, J. dissenting


Stroud, 106 Wn.2d 144, 148, 720 P.2d 436 (1986) (citation omitted), overruled on

other grounds by State v. Buelna Valdez, 167 Wn.2d 761, 224 P.3d 751 (2009).

      As noted by the Stroud court, article I, section 7 typically requires that police

obtain authority of law in the form of a warrant before engaging in a search.

Article I, section 7 generally requires a warrant because doing so interposes "a

neutral and detached magistrate" between the citizenry and "the officer engaged in

the often competitive enterprise of ferreting out crime" and ensures an objective

look at "the need to invade [the citizen's] privacy in order to enforce the law."

United States v. Johnson, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948);

McDonald v. United States, 335 U.S. 451, 455, 69 S. Ct. 191, 93 L. Ed. 153

(1948).

      However, article I, section 7 recognizes that other sources of law, such as the

common law, may authorize a law enforcement search in lieu of a warrant in a

small number of circumstances. State v. Ringer, 100 Wn.2d 686, 691, 674 P.2d

1240 (1983), overruled on other grounds by Stroud, 106 Wn.2d at 150-51 (Article

I, section 7 "poses ·an almost absolute bar to warrantless arrests, searches, and

seizures, with only limited exceptions."). 2 One of these warrantless searches

authorized by the common law is a search incident to a lawful custodial arrest. I d.;


      2
      "Ringer was overruled by Stroud, but in retrospect only temporflrily." State v. Snapp,
174 Wn.2d 177, 193,275 P.3d 289 (2012).
                                             3
State v. Byrd, No. 86399-7
Fairhurst, J. dissenting


State v. O'Neill, 148 Wn.2d 564, 585-86, 62 P.3d 489 (2003). Washington's search

incident to arrest exception to the warrant requirement is descended from common

law and coextensive in scope with the common law exception for warrantless

searches incident to arrest. Buelna Valdez, 167 Wn.2d at 773.

      The permissible scope of any warrantless search 1s limited by its

justifications so that exceptions to the warrant requirement do not "swallow what

our constitution enshrines." State v. Day, 161 Wn.2d 889, 894, 168 P.3d 1265

(2007); State v. Patton, 167 Wn.2d 379, 386, 219 P.3d 651 (2009). This limited

scope applies to a search incident to arrest as well. "The right to search incident to

arrest 'is merely one of those very narrow exceptions to the guaranties and

immunities which we inherited from our English ancestors, and which had from

time immemorial been subject to certain well-recognized exceptions arising from

the necessities of the case."' Ringer, 100 Wn.2d 699-700 (internal quotation marks

omitted) (quoting United States v. Rabinowitz, 339 U.S. 56, 72, 70 S. Ct. 430, 94

L. Ed. 653 (1950) (Frankfurter, J., dissenting), overruled in part by Chime! v.

California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)). "The exception

must be 'jealously and carefully drawn', and must be strictly confined to the

necessities of the situation." ld. (quoting State v. Houser, 95 Wn.2d 143, 149, 622

P.2d 1218 (1980)).


                                          4
State v. Byrd, No. 86399-7
Fairhurst, J. dissenting


      At common law, two necessities justified warrantless searches incident to

arrest and defined the permissible scope of such searches. First, a search allowed

officers to discover weapons or tools that the arrestee could use to harm the officer

or otherwise escape. Id. at 692 (citing Lehigh v. Cole, 6 Cox Crim. L. Cas. 329,

332 (Oxford Cir. 1853)). Second, a search allowed police to turn up evidence of the

crime of arrest, preventing the arrestee from destroying the evidence. I d. at 692-93

(citing Dillon v. O'Brien, 20 L.R. Ir. 300, 316-17 (Ex. D. 1887)).

      As the majority notes, searches incident to arrest encompass searches of both

the person of the arrestee and his or her surroundings. Majority at 4-7. The same

justifications underlie both types of searches. See, e.g., State ex rel. Murphy v.

Brown, 83 Wash. 100, 105-06, 145 P. 69 (1914) (an arrest authorizes a warrantless

search of the arrestee's person to discover evidence of the crime of arrest).

Distinctions exist between the searches because the validity of a search incident to

arrest is measured at the time of the search. Patton, 167 Wn.2d at 394-95. Any

weapon or evidence secreted on the person of the arrestee is always accessible, so a

search of the person of the arrestee is always permissible. United States v.

Robinson, 414 U.S. 218,235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). To search the

area immediately around the arrestee at the time of arrest, however, the police must




                                          5
State v. Byrd, No. 86399-7
Fairhurst, J. dissenting


demonstrate that the arrestee could reach the area to obtain a weapon or destroy

evidence. Buelna Valdez, 167 Wn.2d at 778.

      Neither of the necessities recognized by the common law and authorizing a

search incident to arrest justifies the search of Byrd's purse.

      First, Byrd could not obtain a weapon from the purse at the time of the

search. The officer had doubly secured Byrd by that point-he had handcuffed her

and taken the additional precautionary step of placing her in a police car lacking

door handles. Clerk's Papers at 5. The trial court specifically found that Byrd could

not have accessed the purse at any time after her arrest and that the purse posed no

danger to the safety of the officer. !d. The State does not challenge these findings,

making them verities on appeal. O'Neill, 148 Wn.2d at 571. On these facts, the

State cannot justify the search as necessary to discover weapons.

       Nor could Byrd have destroyed evidence of the crime of arrest located inside

her purse. The officer arrested Byrd for possessing stolen property. 3 Any evidence

of Byrd's possession of the stolen plates was attached to her car and not within her




       3
         The officer arrested Byrd for possession of stolen property after seeing her car, running
its plates, and finding the plates did not match the car. The officer contacted the owner of the
plates, who at first confirmed they were stolen. The owner retracted the accusation after learning
that her son had sold the car involved to Byrd two days before Byrd's arrest. The State never
charged Byrd with possession of stolen property, meaning the only charges in this case stem
from the search made in the course of the mistaken arrest.
                                                6
State v. Byrd, No. 86399-7
Fairhurst, J. dissenting


purse. In any event, Byrd was secured inside a police vehicle and unable to reach

the purse to destroy any evidence inside it.

      The Court of Appeals properly found that neither common law justification

permitted the search of Byrd's purse. Byrd, 162 Wn. App. at 617. The Court of

Appeals only erred by examining the permissibility of this search under the federal

constitution before doing so under the Washington State Constitution. Id. at 615-17

(analyzing the search under the Fourth Amendment). We should affirm the Court

of Appeals, but do so on state constitutional grounds.

      The majority would allow the search of the purse because it characterizes the

purse as being part of Byrd's person. Majority at 10 (reasoning that treating the

purse as part of Byrd's person "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"). I agree with the majority that a search incident to arrest always

justifies a search of the arrestee's person; however, I disagree that the search of this

purse was a search ofByrd's person.

       Courts have, for several generations, noted the peculiar susceptibility of the

search incident to arrest to a ""'progressive distortion'"" allowing searches whose

scopes exceed their justifications. Patton, 167 Wn.2d at 389 (quoting Ringer, 100

Wn.2d at 694 (quoting Rabinowitz, 339 U.S. at 75)). We must remember that the


                                           7
State v. Byrd, No. 86399-7
Fairhurst, J. dissenting


search incident to arrest exception to the warrant requirement                 IS   born of, and

should be limited to, necessity.

      This, however, is not a case of necessity. The officer removed Byrd's purse

from her car, and he had no need to do so. 4 Leaving the purse in the car would have

posed no threat to the safety of the officer or of the general public. Nor would

doing so have posed any danger to any evidence inside. By sweeping with a broad

brush and announcing that police may always treat certain items in the possession

of an arrestee as part of the arrestee, and therefore search the items without

demonstrating any danger to the safety of officers or evidence, the majority has

needlessly divorced the exception from its justifications and limits.

       "'[W]hen a search can be delayed to obtain a warrant without running afoul

of concerns for the safety of the officer or to preserve evidence of the crime of

arrest from concealment or destruction by the arrestee [and no other exception

applies] 'the warrant must be obtained."' Snapp, 174 Wn.2d at 195 (quoting

Buelna Valdez, 167 Wn.2d at 773). The officer, by simply leaving Byrd's purse

where it was, could have delayed the search of the purse and attempted to obtain a

warrant where a neutral magistrate would have determined that law enforcement



       4
        This is not a case where police officers make an arrest in public and must either search
the object before transporting the object to jail to verify that it posed no risk to their safety or
allow the arrestee to abandon it in public, where once abandoned the police could search it.
                                                 8
State v. Byrd, No. 86399-7
Fairhurst, J. dissenting


had sufficient justification for the invasion of Byrd's privacy as required by article

I, section 7.

                                      CONCLUSION

       When the officer took the purse, it was located in Byrd's car where it posed

no threat to anyone or anything and enjoyed the privacy protections of article I,

section 7. Mesiani, 110 Wn.2d at 456-57 (citing State v. Gibbons, 118 Wash. 171,

187, 203 P. 390 (1922) ("From the earliest days of the automobile in this state, this

court has acknowledged the privacy interest of individuals and objects in

automobiles.")). The majority divests the purse of these protections by needlessly

considering the purse a part of Byrd's person.

       The trial court's undisputed findings of fact reflect that neither Byrd nor the

purse posed any danger to the safety of the officer or public or to the destruction of

evidence of the crime of arrest. The police should have sought a warrant to search

the purse. Treating Byrd's purse as part of her person serves none of the purposes

justifying a search incident to arrest. Because the officer did not obtain a warrant,

and because the State does not offer any other permissible justification for this

warrantless search, we should hold that the trial court properly ruled the search was

invalid and properly suppressed the evidence discovered inside the purse.




                                           9
State v. Byrd, No. 86399-7
Fairhurst, J. dissenting


      We have, within the last 30 years, twice been forced to rein in the scope of

the search incident to arrest exception because of the progressive distortion

described by Justice Frankfurter. Buelna Valdez, 167 Wn.2d at 774-77; Ringer,

100 Wn.2d at 698-700. The majority once again loosens the tether of the

justifications for the search incident to arrest exception. I dissent.




                                            10
State v. Byrd, No. 86399-7
Fairhurst, J. dissenting




                             11
