search incident to arrest exception in Washington

2018The 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.

2018The 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.

2018See 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 .

2014Thus, “ [i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” Id. (citing Preston v. United States, 376 U.S. 364, 367-68 , 84 S. Ct. 881 , 11 L.

2018The 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.

2018The 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.

2013Bravo 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)). ¶8 At issue here is the search incident to arrest exception.

2013See 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). ¶17 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.

2015Ed. 2d 1 (2013)). 43 Rilev, 134 S. Ct. at 2484 . -11- No. 70839-2-1/12 The Washington Supreme Court has stated that this balancing of interests is not appropriate under article I, section 7.44 However, in the context of a locked container, it has twice "considered the underlying rationale of the search incident to arrest exception—the danger that an individual may secure a weapon or conceal or destroy evidence of the crime of arrest."45 In each case, "[t]he court held that locked containers did not raise either concern because '[t]he individual would have to spend time unlocking the container,

2015Ed. 2d 1 (2013)). 43 Rilev, 134 S. Ct. at 2484 . -11- No. 70839-2-1/12 The Washington Supreme Court has stated that this balancing of interests is not appropriate under article I, section 7.44 However, in the context of a locked container, it has twice "considered the underlying rationale of the search incident to arrest exception—the danger that an individual may secure a weapon or conceal or destroy evidence of the crime of arrest."45 In each case, "[t]he court held that locked containers did not raise either concern because '[t]he individual would have to spend time unlocking the container,

2015Gordon McCloud, J. ¶25 (dissenting) — In State v. Byrd, 178 Wn.2d 611, 623 , 310 P.3d 793 (2013), this court held that law enforcement must constrain their search of an arrestee’s person, incident to arrest, to only “those personal articles in the arrestee’s actual and exclusive possession at or immediately preceding the time of arrest.” This case requires us to interpret the phrase “immediately preceding the time of arrest” in order to determine the scope of the search incident to arrest exception to the warrant requirement. ¶26 The majority holds that the exception authorizes the search of a

2015Gordon McCloud, J. ¶25 (dissenting) — In State v. Byrd, 178 Wn.2d 611, 623 , 310 P.3d 793 (2013), this court held that law enforcement must constrain their search of an arrestee’s person, incident to arrest, to only “those personal articles in the arrestee’s actual and exclusive possession at or immediately preceding the time of arrest.” This case requires us to interpret the phrase “immediately preceding the time of arrest” in order to determine the scope of the search incident to arrest exception to the warrant requirement. ¶26 The majority holds that the exception authorizes the search of a

2003See, e.g., State v. Johnson, 71 Wn.2d 239, 242 , 427 P.2d 705 (1967) (lawful arrest is a prerequisite to a lawful search); State v. Miles, 29 Wn.2d 921, 933 , 190 P.2d 740 (1948) (if arrest is unlawful, search is unlawful) [.] It states the obvious to observe that where a person is not under arrest there can be no search incident thereto.

2003See, e.g., State v. Johnson, 71 Wn.2d 239, 242 , 427 P.2d 705 (1967) (lawful arrest is a prerequisite to a lawful search); State v. Miles, 29 Wn.2d 921, 933 , 190 P.2d 740 (1948) (if arrest is unlawful, search is unlawful) [.] It states the obvious to observe that where a person is not under arrest there can be no search incident thereto.

2019The Court stressed that the search incident to arrest exception was categorical, its prior decision in Riley v. California, 573 U.S. ___ , 134 S. Ct. 2473 , 189 L.

2019The Court stressed that the search incident to arrest exception was categorical, its prior decision in Riley v. California, 573 U.S. ___ , 134 S. Ct. 2473 , 189 L.

2018The 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.

2018The 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.

2016That breath tests fall under the search incident to arrest exception to the warrant requirement is what makes this case distinct from Gauthier, the primary case relied on by the defendants. 174 Wn.

2016As discussed below, the right to refuse exists solely as a matter of legislative grace from the implied consent statute. ¶31 That breath tests fall under the search incident to arrest exception to the warrant requirement is what makes this case distinct from Gauthier , the primary case relied on by the defendants. 174 Wn.

2015Ed. 2d 1 (2013)). 43 Rilev, 134 S. Ct. at 2484 . -11- No. 70839-2-1/12 The Washington Supreme Court has stated that this balancing of interests is not appropriate under article I, section 7.44 However, in the context of a locked container, it has twice "considered the underlying rationale of the search incident to arrest exception—the danger that an individual may secure a weapon or conceal or destroy evidence of the crime of arrest."45 In each case, "[t]he court held that locked containers did not raise either concern because '[t]he individual would have to spend time unlocking the container,

2012Id. at 395 , 219 P.3d 651 . ¶ 28 In Buelna Valdez, 167 Wash.2d at 777, 224 P.3d 751 , we expressly held, under circumstances directly raising the issue, that "after an arrestee is secured and removed from the automobile, he or she poses no risk of obtaining a weapon or concealing or destroying evidence of the crime of arrest located in the automobile, and thus the arrestee's presence does not justify a warrantless search under the search incident to arrest exception." Accordingly, we overruled State v. Stroud, 106 Wash.2d 144, 152 , 720 P.2d 436 (1986), where an eight member majority of the co

2013Bravo 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)). ¶8 At issue here is the search incident to arrest exception.

2013However, the search incident to arrest exception to the warrant requirement, which allowed officers to search a suspect' s car at the time of the arrest, was restricted by the United States Supreme Court' s opinion in Gant and our Supreme Court' s opinion in State v. Patton, 167 Wn.2d 379 , 394 -95, 219 P. 3d 651 ( 2009).

2016Snapp, 174 Wn.2d at 197, 201 .

2013See 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). ¶17 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.

2012But as explained, these cases were overruled by Ringer because they had "allowed the scope of the search incident to arrest exception ... to far exceed any historical justification or precedent." Ringer, 100 Wash.2d at 695 , 674 P.2d 1240 (citation omitted) (addressing several cases including State v. Deitz, 136 Wash. 228 , 239 P. 386 (1925), overruled by Ringer, 100 Wash.2d at 699 , 674 P.2d 1240 and State v. Cyr, 40 Wash.2d 840 , 246 P.2d 480 (1952), overruled by Ringer, 100 Wash.2d at 699 , 674 P.2d 1240 ). ¶ 46 We hold that the Thornton exception does not apply under article I, section 7.

2012But as explained, these cases were overruled by Ringer because they had "allowed the scope of the search incident to arrest exception ... to far exceed any historical justification or precedent." Ringer, 100 Wash.2d at 695 , 674 P.2d 1240 (citation omitted) (addressing several cases including State v. Deitz, 136 Wash. 228 , 239 P. 386 (1925), overruled by Ringer, 100 Wash.2d at 699 , 674 P.2d 1240 and State v. Cyr, 40 Wash.2d 840 , 246 P.2d 480 (1952), overruled by Ringer, 100 Wash.2d at 699 , 674 P.2d 1240 ). ¶ 46 We hold that the Thornton exception does not apply under article I, section 7.

2011Recently, this exception has come under much scrutiny, first with Gant , and then with a series of opinions from our Supreme Court. ¶ 19 In Gant , the United States Supreme Court observed that the search incident to arrest exception had come to be regarded as "`a police entitlement rather than as an exception justified by the twin rationales of Chimel [ v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969)].'" Gant, 129 S.Ct. at 1718 .

2011Recently, this exception has come under much scrutiny, first with Gant , and then with a series of opinions from our Supreme Court. ¶ 19 In Gant , the United States Supreme Court observed that the search incident to arrest exception had come to be regarded as "`a police entitlement rather than as an exception justified by the twin rationales of Chimel [ v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969)].'" Gant, 129 S.Ct. at 1718 .

2013See 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). ¶17 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.

2011Mr. Brown received a standard range sentence of 20 months' confinement. ¶ 3 On April 21, 2009, the United States Supreme Court decided Gant, in which it held that the exception to the general warrant requirement for searches incident to arrest is available only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, thereby correcting what it perceived to be an overbroad reading by the courts of the search incident to arrest exception as articulated in New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981). ¶ 4 Mr.

2018Parker held that the search incident to arrest exception to the warrant requirement did not extend to include the personal belongings of passengers in a car when the driver is arrested. 139 Wn.2d at 502-03 .

2018In Mendez, we described our test as "predicated specifically on safety concerns," 137 Wn.2d at 220 , and in Parker we noted that "the search incident to arrest exception functions primarily to achieve [officer safety]," 139 Wn.2d at 499 .

2013Bravo 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)). ¶8 At issue here is the search incident to arrest exception.

2013See 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). ¶17 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.

2018In Birchfield, the United States Supreme Court held that a warrantless blood draw cannot be justified under the search incident to arrest exception to the warrant requirement. 136 S. Ct. at 2178 .

2016In Birchfield , the Court explained the federal constitutional limit on the reach of implied consent laws: the Fourth Amendment permits laws that imply consent to warrantless breath tests and that render breath test results admissible because the Fourth Amendment makes such warrantless breath tests constitutional under the search incident to arrest exception, but the Fourth Amendment bars laws that imply consent to war-rantless blood draws and that render blood test results admissible because the Fourth Amendment makes such warrantless blood draws unconstitutional and exempt from the search in

2009Johnson, 128 Wash.2d at 434-36 , 909 P.2d 293 ; Vrieling, 144 Wash.2d at 490-91 , 28 P.3d 762 . ¶ 22 In Parker, we again addressed the scope of the bright line rule under Stroud with four separate opinions discussing the history and justification of the search incident to arrest exception. 139 Wash.2d 486 , 987 P.2d 73 .

2009Johnson, 128 Wn.2d at 434-36 ; Vrieling, 144 Wn.2d at 490-91 . ¶22 In Parker, we again addressed the scope of the bright line rule under Stroud with four separate opinions discussing the history and justification of the search incident to arrest exception. 139 Wn.2d 486 .

2020Baird, 187 Wn.2d at 221-22 .

2019In Baird, the court stated, “The Supreme Court of the United States has recently decided this question for us: breath tests conducted subsequent to an arrest for DUI fall under the search incident to arrest exception to the warrant requirement.” 187 Wn.2d at 222 (emphasis added).

2015Id. at 154, 159. ¶35 In addition to misunderstanding the presumption approved in Robinson , this holding is contrary to two principles governing the search incident to arrest exception. ¶36 The first principle is that “the proper scope of the time of arrest rule is narrow ... [because a search incident to arrest is a] ‘jealously guarded’ exception to the warrant requirement.” Byrd, 178 Wn.2d at 623 (emphasis added) (citing Bravo Ortega, 177 Wn.2d at 122 ).

2013Bravo 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)). ¶8 At issue here is the search incident to arrest exception.