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
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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
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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
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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.
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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,
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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.
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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").
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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
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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
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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.
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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.
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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,
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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).
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WE CONCUR:
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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
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
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.
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