    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                         No. 67334-3-1
                     Respondent,                                                                           t.   .

                                                         DIVISION ONE                           c—>

                                                                                                jr-   t>^
              v.                                                                                T->   ~-r~~
                                                                                                      rn
                                                         PUBLISHED OPINION                      c~>
                                                                                                      ~n
ANTOINE LAMONT BROCK,                                                                           .p-
                                                                                                      ....*>
                                                                                                       -:> -x.
                                                                                                3*»   '• Of-r
                     Appellant.                          FILED: August 4, 2014                  ZJC   •r-i>
                                                                                                      - . , j—
                                                                                                CD    .it"

                                                                                                CD
                                                                                                      -^c:
       Appelwick, J. — Under the "time of arrest" rule, an officer may search personal*

articles in an arrestee's actual and exclusive possession at or immediately preceding

the time of arrest. During a Terry1 stop, an officer separated Brock from his backpack.

The officer subsequently arrested Brock and searched his backpack, but not until nearly

10 minutes after separating Brock from the bag. The trial court denied Brock's motion

to suppress, finding that this was a valid search incident to arrest under article I, section

7 of the Washington Constitution. We reverse and remand.

                                          FACTS


       On May 21, 2008, Officer Eric Olson was patrolling Golden Gardens Park at 3:00

a.m. The park had closed at 11:30 p.m. As Officer Olson approached the bathhouse,

he noticed that the door to the men's restroom was open and the light was on. Inside


        Terry v. Ohio. 392 U.S. 1, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968).
No. 67334-3-1/2




the men's room, Officer Olson could see a pair of legs.          The legs belonged to the

appellant in this case, Antoine Brock. Officer Olson waited for roughly 10 minutes for

Brock to come out of the restroom.

        When Brock emerged, he was wearing baggy clothing and carrying a full

backpack. Officer Olson identified himself as a police officer and informed Brock that

the park was closed and Brock was not allowed to be there. Officer Olson had probable

cause at this time to arrest Brock for trespass, but chose not to.

        Instead, Officer Olson decided to perform a Terry stop and frisk. Officer Olson

told Brock that he was not under arrest. Officer Olson asked Brock to put down his

backpack, and Brock complied. Officer Olson did not find any weapons or any other

items during his pat down of Brock. He did not pat down or search the backpack at that

time.


        After the pat down, Officer Olson asked Brock for identification as part of his

trespass investigation. Brock replied that he did not have identification on him. Instead,

he told Officer Olson that his name was Dorien Halley and provided a corresponding

birth date and social security number.

        Officer Olson told Brock to come back to his patrol truck to continue the

investigation. With safety concerns in mind, Officer Olson carried Brock's backpack.

Officer Olson had Brock stand on the curb 12 to 15 feet from the truck while Officer

Olson placed the backpack in the front passenger seat. Officer Olson reminded Brock

that he was still not under arrest at the time, but told Brock that he was not free to go.

        Officer Olson checked the identification that Brock provided through the

Washington State Patrol database. Brock told Officer Olson that he would not find a
No. 67334-3-1/3




record of Brock, because Brock's license was from California. Officer Olson entered the

information that Brock had given him, but found no record in either Washington or

California.

       At that point, Officer Olson felt that he had probable cause to arrest Brock for

providing false information. He told Brock that he was under arrest and read him his

Miranda2 rights. Because Brock had been cooperative and did not have weapons on

his person, Officer Olson did not handcuff him.      Officer Olson also told Brock that he

was not necessarily going to jail.

       Officer Olson had not felt a wallet during the pat down, so he decided to look for

Brock's identification in the backpack. He left Brock standing on the curb 12 to 15 feet

away. The backpack was still in the truck when Officer Olson searched it. Officer Olson

kept Brock in view while searching the bag. Officer Olson considered his search of the

backpack a search incident to arrest. He did not articulate an officer safety or evidence

preservation rationale for his search.

       In searching the backpack, Officer Olson immediately saw a wallet-like object

and thought it would be a likely place to find identification. In the wallet, he found two

small baggies that appeared to contain methamphetamine and marijuana.              He also

found a Department of Corrections (DOC) inmate identification card.              The card

displayed Brock's picture and identified him as Antoine L. Brock.

       Officer Olson then handcuffed Brock, thoroughly searched his person, and put

him in the back of his patrol truck.     Officer Olson estimated that the time from initial

contact to handcuffing Brock was 10-12 minutes.


       2 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 67334-3-1/4




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

that he had a DOC felony arrest warrant. Once the Washington State Patrol confirmed

the warrant, Officer Olson decided to take Brock to jail.

       Before doing so, Officer Olson pulled the rest of Brock's belongings out of his

backpack. Brock still did not have access to the bag at this point. Officer Olson found a

number of items, including checks, credit cards, mail, and more baggies he suspected

might contain narcotics.    Officer Olson testified that he did not perform a thorough

inventory at that time or catalogue the objects in the backpack. However, Officer Olson

also testified that he would be unable to bring an arrestee's personal effects to the jail

without searching them for contraband, weapons, or explosives.

       Brock was ultimately booked for his DOC warrant and possession of

methamphetamine.      In addition, Officer Olson recognized that the checkbooks, credit

cards, and bank statements that he found in Brock's backpack—which had other

people's names affixed to them—were possible stolen property. Officer Olson entered

these items into evidence. The State ultimately charged Brock with 10 counts of identity

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

Controlled Substances Act, chapter 69.50 RCW.

       Brock moved to suppress the evidence found in his backpack. The court denied

Brock's motion, finding that this was a valid search incident to arrest.

       Brock waived his right to a jury trial and proceeded by way of stipulated trial. The

court found him guilty on all counts except one identity theft count.      He appeals his

conviction.
No. 67334-3-1/5




                                      DISCUSSION


       Brock argues that the search of his backpack was unlawful under article I,

section 7 of the Washington Constitution. He contends that there was no officer safety

or evidence preservation basis for the search, so the trial court erred in denying his

motion to suppress.    This court reviews de novo conclusions of law from an order

pertaining to the suppression of evidence. State v. Valdez, 167 Wn.2d 761, 767, 224

P.3d 751 (2009).

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

be disturbed in his private affairs, or his home invaded, without authority of law." Under

this provision, a warrantless search is per se unreasonable unless it falls within one of

the "carefully drawn and jealously guarded" exceptions to the warrant requirement.

State v. Ortega. 177Wn.2d116, 122, 297 P.3d 57 (2013).

       One such exception is the search incident to arrest. Id. at 123. An officer may,

incident to a lawful custodial arrest, make a warrantless search of (1) an arrestee's

person and (2) the area within an arrestee's immediate control. Valdez, 167 Wn.2d at

769. Only the former is at issue here. A search of an arrestee's person encompasses

both the arrestee and personal articles in the arrestee's actual and exclusive

possession at or immediately preceding the time of arrest. State v. Bvrd, 178 Wn.2d

611, 623, 310 P.3d 793 (2013). Constructive possession is insufficient: the search must

extend to only those articles immediately associated with the arrestee. ]d. Under the

time of arrest rule, an article is "immediately associated" with an arrestee's person if the

arrestee has actual possession at or immediately preceding the time of arrest. ]d. at
No. 67334-3-1/6




621, 623. Searches of an arrestee's person require no additional justification beyond

the validity of the arrest. ]d at 617-18.

       In Bvrd, the Washington Supreme Court upheld the search of a purse that was

on the defendant's lap when she was arrested. Id. at 615, 624. The officer seized the

purse and set it on the ground before securing the defendant in his patrol car. Id at

615.   He returned to the purse "within 'moments'" to search it for weapons or

contraband, whereupon he found methamphetamine.            ]d     The court found that the

defendant's purse was immediately associated with her person at the time of arrest,

leaving her possession only after the arrest. teL at 623-24. It was thus a constitutional

search incident to arrest of the arrestee's person.3 Jd at 624.

       The court recently reiterated this rule in State v. MacDicken. No. 88267-3, 2014

WL 766693 (Wash. Feb. 27, 2014). There, the defendant was carrying a laptop bag

and pushing a rolling duffel bag when he was arrested. ]d at *1. An officer ordered the

defendant to the ground, handcuffed him, and stood him up next to the patrol car. ]d

Another officer then moved the bags a car's length away and searched them. Id The

court concluded that the bags were in the defendant's actual and exclusive possession

at the time of arrest and were immediately associated with his person, jd at *3. It held

that the search of the bags was a part of a lawful search incident to arrest of the

defendant's person. Id




3 The Bvrd court expressed concern about the validity of the underlying arrest, which
would then invalidate the resulting search. See 178 Wn.2d at 625 n.3. However, the
court stated that, if the underlying arrest was valid, the procedures followed were valid
as well. Id. at 625.
No. 67334-3-1/7




       Here, the salient facts are: Officer Olson searched the bag roughly 10 minutes

after seizing it from Brock. The bag was secured in Officer Olson's truck from the time

of seizure through the time of the search.     Brock was 12 to 15 feet away from the

vehicle and the backpack at the time of arrest and during the search of the backpack.

Brock had actual possession of the backpack when Officer Olson initiated the Terry stop

and when he seized it.         However, Brock did not have actual possession of the

backpack at the time of his arrest.

       Under Washington case law, most of these facts will not alone render the search

unreasonable.     See, e.g., MacDicken. 2014 WL 766693 at *1; State v. Smith. 119

Wn.2d 675, 682, 835 P.2d 1025 (1992), abrogated on other grounds bv Bvrd. 178

Wn.2d 623.      In Smith, the court upheld a search of a fanny pack that fell from the

defendant's person during his arrest. 119 Wn.2d at 676-77. There, the officer arrested

the defendant, placed him in the backseat of the patrol car, and set the fanny pack on

the front seat.   Id at 677.   The officer searched the fanny pack between 9 and 17

minutes later. Id The lapse in time of several minutes after separating defendant and

bag did not render the search unreasonable. See id at 677-78. The fact that the officer

had secured the bag in his patrol car for a time prior to the search did not render the

search unreasonable. See id In MacDicken. the bag in the suspect's possession at

the time of arrest was moved a car's length away from the defendant before it was

searched. 2014 WL 766693 at *1. This did not render the search unreasonable. Brock

was separated from his bag for a similar amount of time as Smith and was closer to his

bag than MacDicken was to his when the search occurred. We conclude that neither

the length of time the officer had control of the backpack, the physical distance between
No. 67334-3-1/8




Brock and the backpack, nor the fact that the backpack was secured in the patrol

vehicle require us to invalidate the search of the backpack.

       However, unlike MacDicken and Bvrd. Brock did not have actual possession of

his bag at the time of arrest. We therefore ask: was the backpack in Brock's possession

immediately preceding his arrest so that this was a valid search of an arrestee's person

under the time of arrest rule?


       Washington courts have not precisely defined the scope of "immediately

preceding" the time of arrest.    But, in cases where a defendant has unsuccessfully

challenged possession as related to arrest, the lapse of time between possession and

arrest has been less significant than here. See, e.g., Smith, 119 Wn.2d at 682; State v.

Ellison. 172 Wn. App. 710, 718, 291 P.3d 921 (2013).

       In Smith, the defendant's fanny pack fell off during the struggle that ensued after

the officer tackled him to the ground. 119 Wn.2d at 677. The officer then arrested the

defendant and searched the fanny pack. ]d The court upheld the search. Id at 682.

Although the fanny pack was not on the defendant's person at the exact moment of

arrest, the court found that the defendant was in actual possession of the fanny pack

"just prior to the arrest."4 ]d

       In Ellison, officers encountered the defendant with his backpack between his

feet. 172 Wn. App. at 718. In the process of arresting the defendant, officers had him

move to the ground and placed him in handcuffs.       Id The defendant argued that he



4 In upholding the search, the court also found that the fanny pack was within the
defendant's reach at the time of arrest, constituting constructive possession. Smith. 119
Wn.2d at 682. Bvrd abrogates Smith's holding that constructive possession would be
sufficient. 178 Wn.2d at 623.


                                                8
No. 67334-3-1/9



was thus not in control of the bag at the time of arrest. ]d at 717. The court disagreed,

suggesting that, even if the defendant was separated from his bag prior to his arrest, he

still had control of the bag immediately prior. Id. at 718, n.4.

       In both of these cases, the defendant was separated from his bag while the

officer restrained him for the specific purpose of arresting him. See Smith. 119 Wn.2d

at 677; Ellison. 172 Wn. App. at 718.          The period of time that passed between

possession and arrest was very brief. See Smith. 119 Wn.2d at 677; Ellison. 172 Wn.

App. at 718.

       By contrast, Officer Olson separated Brock from his bag during an investigative

stop, did not intend to arrest Brock at that time, and explicitly told Brock he was not

under arrest. The bag remained in the patrol vehicle unsearched for nearly 10 minutes.

When Officer Olson's investigation provided him new information, he arrested Brock,

but he did not handcuff Brock and stated Brock was not necessarily going to jail. Then,

Officer Olson returned to the bag in his front seat to search it.

       Brock's backpack was neither on his person nor within his area of control at the

time of his arrest. While Officer Olson had probable cause to arrest Brock when he

seized the backpack, it is the arrest itself—not probable cause—that constitutes the

necessary authority of law to search under article I, section 7. State v. O'Neill. 148

Wn.2d 564, 585-86, 62 P.3d 489 (2003). Therefore, to find that this was a valid search

incident to arrest, we must conclude that, for the purposes of what is in an arrestee's

possession, "immediately prior to arrest" includes either the time between a valid Terry

stop and the actual resulting arrest or the time between seizure of the backpack during
No. 67334-3-1/10




the Terry stop and the resulting arrest.     To date, the language in the Washington

Supreme Court's opinions has not gone this far. We decline to do so here.

      We conclude that Brock did not have actual and exclusive possession of his

backpack at or immediately preceding the time of his arrest.        This was not a valid

search incident to arrest. The trial court erred in denying his motion to suppress.

      We reverse and remand.




WE CONCUR:




                                               10
                              State v. Brock. 67334-3-1

       Becker, J. (dissenting) — I dissent from the majority decision and would

hold that the warrantless search of the backpack was justified as a search of the

arrestee's person incident to arrest.

       Both parties cite the holding of State v. Bvrd. 178Wn.2d 611, 310 P.3d

793(2013):

               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. 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.

Bvrd. 178 Wn.2d at 623 (citation omitted).

       The backpack was in Brock's actual and exclusive possession shortly

before the officer placed Brock under arrest for providing false information. I do

not see any significance in the fact that Brock was separated from his backpack

for about 10 minutes while the officer conducted an investigative stop. It is true

that only a lawful custodial arrest provides authority to search incident to arrest

under article I, section 7. State v. O'Neill. 148 Wn.2d 564, 585, 62 P.3d 489

(2003). The rule of O'Neill was not violated here, where the officer did not begin

searching the backpack until he had placed Brock under arrest.

       As set forth in Bvrd, the scope of a lawful warrantless search of personal

articles as part of a search incident to arrest has three components: (1) the

articles must be "personal," (2) they must be "in the arrestee's actual and

exclusive possession," and (3) the possession must be "at or immediately
No. 67334-3-1/2 (dissent)


preceding the time of arrest." Bvrd. 178 Wn.2d at 623. If loosely interpreted, any

one of these components has the potential to escape from historical limits and

start down the road toward another progressive distortion of the type decried by

Justice Frankfurter in his dissent in 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 Chimel v. California. 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).

See generally People v. Cregan. 2014 IL 113600. If 98. 118; 10 N.E.3d 1196

(Burke, J., dissenting and expressing concern that the test articulated by the

Cregan majority will permit a return to full vehicle searches incident to arrest by

conceiving of a vehicle as a container immediately associated with an arrestee's

person).

       Searching a backpack does go beyond the facts of United States v.

Robinson, the Fourth Amendment source of the Bvrd holding. United States v.

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

the crumpled cigarette package containing heroin was found in a shirt pocket

during a routine collar-to-socks search of the arrestee's clothing. Robinson. 414

U.S. at 221 & n.2. Still, many other courts have seen purses and fanny packs

and shoulder bags as sufficiently pocket-like to be regarded as "in a fair sense a

projection" of the arrestee's person. Rabinowitz. 339 U.S. at 78 (Frankfurter, J.,

dissenting). So far, cases following Robinson have projected the person only as

far out as backpacks and briefcases and luggage the arrestee was carrying or

pushing.
No. 67334-3-1/3 (dissent)


       I do not perceive the facts of this case as giving cause for alarm that

searches of the person incident to arrest will become open-ended as to time.

The encounter occurred in a lonely spot in the middle of the night. Officer Olson

might have arrested Brock immediately for trespassing. Had he done so, the

majority would have recognized the subsequent search of the backpack as valid

under Byrd's time of arrest rule. To hold that the search became invalid because

the officer decided to investigate before making an arrest would create an

undesirable incentive for hasty arrests. The officer was entitled to put the

backpack out of reach for his own safety while he decided whether or not to

make an arrest. The officer's way of dealing with the situation was thoroughly

professional. I would affirm.




                                                  "forgfeg,


                                                                                    s     3
                                                                                    cz    '"•
                                                                                    C~>   —j




                                                                                    Zi£   -—



                                                                                    O     7\
