                                                                         FILED
                                                                      AUGUST 9, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 35452-1-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
DAWN MARIE MITCHELL,                          )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — Dawn Mitchell appeals from her conviction for possession of a

controlled substance, arguing that officers waited too long to search her purse after

arresting her on an outstanding warrant. We affirm.

                                          FACTS

       Ms. Mitchell was a passenger in a car stopped in Kennewick for having a

defective brake light. In conversation with the driver, the officer learned Ms. Mitchell’s

name. Calling the name into dispatch, the officer was alerted to an arrest warrant from

Yakima County.
No. 35452-1-III
State v. Mitchell


       The officer returned to the car and placed Ms. Mitchell under arrest. A purse sat

on her lap between her legs. The officer took control of the purse. After looking inside

and seeing that there were a lot of small items that might be lost if the purse was searched

in the darkness at the scene, the officer decided to search the purse at the jail; he also

testified that the weather was very cold. The subsequent search at the jail uncovered the

presence of an oxycodone pill.

       The prosecutor filed one count of possession of a controlled substance. The

defense moved to suppress, arguing that the search of the purse at the jail was untimely

and unauthorized. After hearing testimony, the court expressly found that the search

occurred within ten minutes of the defendant’s arrest and that the entire incident from

traffic stop to purse search took no more than 25 minutes. Clerk’s Papers (CP) at 27-28.1

Determining that the search was not unduly delayed and was reasonable under our case

law, the court denied the motion. CP at 28.

       The defendant was convicted at a stipulated facts trial. After sentencing and the

entry of necessary findings, Ms. Mitchell appealed to this court. A panel considered the

case without hearing argument.




       1
        The court included these temporal findings within conclusion of law no. 4.
Appellate courts treat a finding of fact that was mislabeled as a conclusion of law as a
finding of fact. State v. Kilburn, 151 Wn.2d 36, 52, 84 P.3d 1215 (2004).

                                               2
No. 35452-1-III
State v. Mitchell


                                         ANALYSIS

       The facts are not in dispute and this appeal presents as its sole issue whether the

trial court erred in denying the motion to suppress the evidence obtained from the purse

search. We therefore consider whether the trial court correctly applied the governing

law. State v. Brock, 184 Wn.2d 148, 355 P.3d 1118 (2015); State v. Byrd, 178 Wn.2d

611, 310 P.3d 793 (2013).

       In an appeal challenging a suppression hearing, this court considers the legal issue

presented de novo. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). We

typically review the trial court’s factual findings for substantial evidence. State v. Hill,

123 Wn.2d 641, 647, 870 P.2d 313 (1994). In instances where, as here, there is no

challenge to the factual findings, we treat them as verities on appeal. Id. at 644.

       Byrd is factually similar to this case. The defendant, Ms. Byrd, was a passenger in

the front seat of a car that was stopped for using stolen license plates. 178 Wn.2d at 615.

She was arrested when the driver identified Ms. Byrd as the owner of the car. Id. At the

time of the arrest, her purse was sitting on her lap. Id. A search of the purse at the scene

uncovered methamphetamine inside a sunglasses case. Id.

       The trial court had suppressed the evidence, ruling that the purse search was only

valid if based on concerns for either officer safety or evidence preservation, neither of

which was present in that instance. Id. This court had agreed and affirmed the trial court

on the same rationale. Id. at 616. The Washington Supreme Court reversed, concluding

                                              3
No. 35452-1-III
State v. Mitchell


that the search of the purse was the same as the search of an arrestee’s person and that

there was no requirement to establish any “particularized concerns for officer safety or

evidence preservation.” Id. at 614.

          The court majority considered both federal and state authority in reaching its

conclusion. It first noted that a search of an arrestee’s person has always been based on

the need for ensuring officer safety and preventing destruction of evidence. Id. at 617-

620. No other exigencies were needed to conduct the search. Id. at 620. The remaining

question was whether the searched article was on the arrestee’s person. Id. at 620-621.

This question is one that needs to be distinguished from property within the arrestee’s

area of control but not on her person. Id. at 621-625. In those later circumstances, the

State must be able to justify the search for reasons other than the mere fact of arrest. Id.

at 625.

          A somewhat different, although related, question was presented in Brock. There

an officer had stopped Mr. Brock and had him remove the backpack he was wearing; the

backpack was placed where Mr. Brock could not readily access it. 184 Wn.2d at 150-

151. The officer questioned Brock and then arrested him. The backpack was searched

incident to the arrest, which may have come as late as ten minutes after the backpack was

removed from Mr. Brock’s person. Id. at 151. The court concluded that the search of the

backpack was valid incident to the arrest of Mr. Brock. Id.



                                                4
No. 35452-1-III
State v. Mitchell


       Applying Byrd, the court concluded that the backpack on Mr. Brock at the time he

was seized was properly subject to search incident to his later arrest. Id. at 154-159. In

the course of its analysis, the court reviewed several of its previous cases in which the

item searched had been in the possession of the arrestee but was later separated from him

by distance or time prior to the actual search. Id. at 156-157 (discussing State v.

MacDicken, 179 Wn.2d 936, 319 P.3d 31 (2014) (upholding search of luggage in control

of arrestee that had been moved one car length away prior to search) and State v. Smith,

119 Wn.2d 675, 835 P.2d 1025 (1992) (fanny pack that fell off defendant during chase

searched 17 minutes after chase and some distance from location of arrest was properly

searched incident to arrest)).2 The court determined that the lapse of time between

seizure and search “had little practical effect on Brock’s relationship to his backpack.”

Id. at 159. The court stated its ultimate ruling:

       Because the search incident to arrest rule recognizes the practicalities 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.

Id. at 158.


       2
         The court also discussed State v. Ellison, 172 Wn. App. 710, 291 P.3d 921
(2013), review denied, 180 Wn.2d 1014 (2014) (backpack between feet of arrestee at time
of arrest was lawfully searched some minutes later). Brock, 184 Wn.2d at 157-158.

                                              5
No. 35452-1-III
State v. Mitchell


       The trial court correctly recognized that Brock and Byrd are controlling here. As

in Byrd, Ms. Mitchell’s purse was on her lap and is considered a part of her person that

was subject to search due to the fact of her lawful arrest. As in Brock, the fact that the

search occurred as long as ten minutes after her arrest does not invalidate the search. The

search was within the same factual circumstances as Byrd and the same temporal period

as Brock.

       The only true distinction between this case and those two cases is that the search

was performed at the jail instead of at the scene of the arrest. This geographic distinction

does not detract from the analysis in Brock. As noted previously, the Brock court cited

with approval searches that occurred at some distance from the arrestee in both Smith

(unspecified distance from arrest, but within area of pursuit) and MacDicken (one car

length from arrest). Hearkening back to the observation in Brock, the location of the

search had “little practical effect” on Ms. Mitchell’s relationship to her purse. Id. at 159.

       In this instance, the last quoted sentence from Brock is the most telling. The purse

was one of the “personal items” going to the jail with Ms. Mitchell. Id. at 158. The fact

that it was searched at that location a brief period of time after she was arrested is a

distinction without a constitutional difference.

       The trial court accurately applied the governing case law and reached the

unassailable conclusion that the search was proper. It therefore correctly denied the

motion to suppress. The judgment is affirmed.

                                              6
No. 35452-1-III
State v. Mitchell


       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




I CONCUR:



 l4-;<,.... ll- �w..1q
       Lawrence-Berrey , .J.
                             ,   C. • �




                                            7
                                      No. 35452-1-III

       PENNELL, J. (concurring) — I agree with the majority opinion that the search of

Dawn Mitchell’s purse was authorized as a search incident to arrest pursuant to binding

precedent. State v. Brock, 184 Wn.2d 148, 355 P.3d 1118 (2015); State v. MacDicken,

179 Wn.2d 936, 319 P.3d 31 (2014); State v. Byrd, 178 Wn.2d 611, 310 P.3d 793 (2013).

I write separately because I share the concern articulated by Justice Gordon McCloud in

MacDicken that our Supreme Court’s analysis has effectively turned what is supposed to

be a narrow exception to the warrant requirement into an affirmative right of law

enforcement to conduct a search. MacDicken, 179 Wn.2d at 946 (Gordon McCloud, J.,

dissenting). It was not long ago that the United States Supreme Court corrected a similar

slippage from constitutional moorings in the context of vehicle searches. Arizona v.

Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). I lament that our Court

has not followed suit in the context of a purse or similar personal item.

       The search incident to arrest rule is an exception to the warrant requirement

marred by a history of “‘progressive distortion.’” State v. Ringer, 100 Wn.2d 686, 694,

674 P.2d 1240 (1983), overruled on other grounds by State v. Stroud, 106 Wn.2d 144,

720 P.2d 436 (1986) (quoting United States v. Rabinowitz, 339 U.S. 56, 75, 70 S. Ct. 430,

94 L. Ed. 653 (1950) (Frankfurther, J., dissenting). At its core, the rule is a sensible one

that recognizes the need of law enforcement officers to work in a safe manner, guided by
No. 35452-1-III
State v. Mitchell (Concurrence)


readily-understood standards. See New York v. Belton, 453 U.S. 454, 458, 101 S. Ct.

2860, 69 L. Ed. 2d 768 (1981). However, for decades, concerns for clear guidance and

police safety led the federal courts (with state courts in tow) to suspend disbelief about

the actual dangers faced by officers arresting recent vehicle occupants. Gant, 556 U.S. at

341-42; Stroud, 106 Wn.2d at 151-52. Our courts allowed officers to perform vehicle

searches incident to the arrest of an occupant based on the theory that at the moment of

initial police conduct, the arrestee could have reached into the vehicle for a weapon or

to destroy evidence. See, e.g., State v. Fadebo, 113 Wn.2d 388, 395-97, 779 P.2d 707

(1989) (arrestee could have reached into unlocked purse). Once faced with this potential

for harm, the search incident to arrest rule entitled an officer to conduct a search, even

if the search did not take place until after the arrested person was taken into custody and

therefore no longer posed an actual risk to officer safety or destruction of evidence. Id.

at 397; Thornton v. United States, 541 U.S. 615, 627, 124 S. Ct. 2127, 158 L. Ed. 2d 905

(2004) (Scalia, J., concurring).

       In 2009, the United States Supreme Court reversed course and announced a

realistic, restrictive approach to the vehicle search incident to arrest rule. In Gant, the

Court recognized the search incident to arrest rule must not be guided by fictional safety

concerns. Nor must it be read to create a police entitlement to search in certain

circumstances. Instead, given constitutional protections against warrantless searches,

Gant held that a vehicle search incident to arrest can pass constitutional muster only if it

                                               2
No. 35452-1-III
State v. Mitchell (Concurrence)


is truly warranted by concerns for officer safety or preservation of evidence. 556 U.S. at

343. Under Gant, it is only when an arrestee might possibly access a weapon or evidence

at the “time of the search” that law enforcement officers may look through a vehicle

under the authority of a search incident to arrest. Id.

       In the wake of Gant, our state Supreme Court outlined two subsets of the search

incident to arrest rule: one pertaining to an arrestee’s surrounding area and the other

applicable to an arrestee’s person. With respect to searches of an arrestee’s surrounding

area, such as a vehicle, our Supreme Court followed Gant and recognized a “time of the

search” rule. State v. Patton, 167 Wn.2d 379, 395, 219 P.3d 651 (2009). Under this rule,

police may conduct a search incident to arrest only if, at the time of the search, there is

a realistic risk of destruction of evidence or a threat to police safety. State v. Valdez,

167 Wn.2d 761, 777, 224 P.3d 751 (2009). But when it comes to an arrestee’s person,

our Supreme Court has taken a different approach. Instead of looking at the dangers

faced by police at the time of the search, our court has adopted a “time of arrest” rule.

Byrd, 178 Wn.2d at 614. Under this rule, police may search all areas constituting part of

the arrestee’s person at the (approximate) time of arrest. Brock, 184 Wn.2d at 158. The

time of arrest rule permits police to search a purse or bag in an arrestee’s immediate and

exclusive control at the time of arrest. Id. at 154. The search may proceed even if (as

here) at the time of the search, there was no risk the arrestee could have accessed their

purse and thereby posed a safety or evidentiary risk. Id. at 155.

                                               3
No. 35452-1-III
State v. Mitchell (Concurrence)


       Our Supreme Court’s time of arrest rule is rooted in an inventory analysis. Brock,

184 Wn.2d at 154-55; Byrd, 178 Wn.2d at 619-20. In the abstract, this makes perfect

sense. “Any weapon or evidence secreted on the person of the arrestee is always

accessible,” so it is crucial that law enforcement officers be able to search such areas.

Byrd, 178 Wn.2d at 631 (Fairhuirst, J., dissenting). In addition, jails are sensitive areas.

When an individual is booked into jail, the State has a legitimate interest in ensuring

against the introduction of dangerous objects or other prohibited items. See Bell v.

Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); United States v.

Edwards, 415 U.S. 800, 802-03, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974).

       But while an inventory analysis is theoretically sound, it is not clear why the

analysis must extend to personal effects such as bags or purses. According to our

Supreme Court, a purse or similar object must be considered part of the arrestee’s person

because it “will necessarily travel with the arrestee to jail.” Brock, 184 Wn.2d at 155.

But that reasoning is circular. The only reason that an arrestee’s purse or bag will

necessarily travel with the arrestee to jail is because the police have seized the purse or

bag as part of an arrestee’s person. As recognized by Justice Fairhurst’s dissent in Byrd,

it is not hard to imagine circumstances where an arrested person would reasonably opt to

leave a purse of bag behind. Byrd, 178 Wn.2d at 633 (Fairhurst, J., dissenting). When an

individual is arrested in a car or in the presence of friends or family, it is quite possible

and reasonable for the individual to choose to leave a purse or bag behind. Given the

                                               4
No. 35452-1-III
State v. Mitchell (Concurrence)


importance of the constitutional right to privacy, it would appear that an arrested person

should at least be given a choice. If the choice is made to leave a purse or bag behind,

then there is no danger that the purse or bag will cause a disruption in a squad car or at

the jail. Under such circumstances, the generally prophylactic tenet of the search incident

to arrest rule should not apply. See Riley v. California, __ U.S. __, 134 S. Ct. 2473,

2485-86, 189 L. Ed. 2d 430 (2014) (The search incident to arrest rule cannot extend to

cell phone data since such data never poses a risk to officer safety and since cell phone

can be seized pending a warrant.).

       As it stands, the search incident to arrest rule crafted by our Supreme Court

affords greater privacy to vehicles than purses or similar objects. Once police separate an

arrested person from her or his vehicle, the fact of arrest, alone, will not justify a search.

Gant, 556 U.S. at 335; Valdez, 167 Wn.2d at 778. But under Brock, MacDicken and

Byrd, a contrary rule applies to purses and bags. Similarly, when an individual is arrested

in a vehicle, our constitution requires that the police seek reasonable alternatives to

impoundment prior to seizing a vehicle and conducting an inventory search. State v.

Houser, 95 Wn.2d 143, 153, 622 P.2d 1218 (1980). But purses and bags are not afforded

similar respect. When an arrested person has a purse or similar object at or near the time

of arrest, our case law entitles law enforcement officers unfettered discretion over

whether to conduct a search. Neither the arrestee’s wishes nor any legitimate needs of

law enforcement restrain this exercise of power.

                                               5
No. 35452-1-III
State v. Mitchell (Concurrence)


       Our case law’s greater protections for vehicles over purses or similar objects run

counter to what I perceive as general expectations of privacy. Vehicles are subject to

numerous regulations. South Dakota v. Opperman, 428 U.S. 364, 368-69, 96 S. Ct. 3092,

49 L. Ed. 2d 1000 (1976). They are typically built for shared use. Their windows subject

much of the interior space to public viewing. But a purse is much different. It is a

closely-held, private object. State v. Johnston, 31 Wn. App. 889, 892, 645 P.2d 63

(1982) (“It would be difficult to define an object more inherently private than the

contents of a woman’s purse.”). A purse is not something that is shared. Its contents are

not readily observable. A purse will often contain its owner’s most intimate possessions,

such as medications, daily calendars, reading materials, photographs, and hygiene

products. Because the contents of a purse are often quite intimate, a search of a closed

purse or similar bag “is undoubtedly a severe violation of subjective expectations of

privacy.” New Jersey v. T.L.O., 469 U.S. 325, 337-38, 105 S. Ct. 733, 83 L. Ed. 2d 720

(1985). Indeed, the fact that a vehicle is apt to contain a purse or similar object is one of

the reasons the United States Supreme Court vigorously restricted the vehicle search

incident to arrest rule in Gant. 556 U.S. at 345 (vehicle search incident to arrest is a

significant intrusion because it involves an invasion of “not just the passenger

compartment but every purse, briefcase or other container within that space”). Given that

the presence of purses or bags heightens the privacy expectations of a vehicle, it is

curious to afford purses or bags less privacy protections than vehicles.

                                              6
No. 35452-1-III
State v. Mitchell (Concurrence)


       At bottom, Brock, MacDicken and Byrd represent a construction of our

constitution’s privacy protections from the perspective of law enforcement. This

conflicts with the fundamental assumption of our state constitution. WASH. CONST. art. I,

§ 1 (“[G]overnments . . . are established to protect and maintain individual rights.”). Our

case law must provide ample room for police officers to safely perform their public

duties. Furthermore, given the fluid circumstances of a custodial arrest, the rules

governing police conduct should be simple and easy to implement. United States v.

Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). But when there is

no realistic need for a law enforcement intrusion, the constitutional right to privacy

should prevail. See Riley, 134 S. Ct. at 2485 (The bright line search incident to arrest rule

has no application when circumstances present no risks to safety or destruction of

evidence.).1

       If writing on a blank slate, I would hold that the search incident to arrest rule only

extends to a purse or similar object if it is readily accessible to the arrested person at the

time of the proposed search (see Gant, 556 U.S. at 343; Chimel v. California, 395 U.S.



       1
         Riley held that when a cell phone is taken into custody as a personal effect, a
warrant is required prior to a search. 134 S. Ct. at 2485. Riley reasoned that purses or
other effects that are “kept on an arrestee’s person” merit less protection than cell phones.
Id. at 2489. However, Riley did not discuss the practicalities of how a purse is kept on an
arrestee’s person or whether police officers are entitled to seize a purse that was once in
the arrestee’s possession so that it may be booked into custody and thereby subject to
search.

                                               7
No. 35452-1-111
State v. Mitchell (Concurrence)


752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); United States v. Maddox, 614 F.3d 1046

(9th Cir. 2010)) or if the purse must be taken into custody either due to the wishes of the

arrested person or because of a lack of reasonable alternatives (see Houser, 95 Wn.2d at

153). However, under Brock, MacDicken and Byrd, this is not the state of the law.

Because our court lacks authority to disrupt Supreme Court precedent and because Ms.

Mitchell's case presents no principled distinction from that precedent, I concur in the

decision to uphold the trial court's order denying Ms. Mitchell's motion to suppress.




                                              Pennell, J.

I CONCUR:




                               C.. �.




                                             8
