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STATE OF WASHINGTON, ) ) No. 35452-1-III Respondent, ) ) v. ) ) DAWN MARIE MITCHELL, ) UNPUBLISHED OPINION ) Appellant.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