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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) Respondent, ) No. 88267-3 ) v. ) EnBanc ) ABRAHAM MACDICKEN, ) ) Filed _ _:_F=EB;__;2=-7.:__._20;__;14_ _ Petitioner. ) ___________________________)
OWENS, J. -- When Abraham MacDicken was arrested on suspicion of armed
robbery, he was carrying a laptop bag and pushing a rolling duffel bag. The arresting
officers moved the bags a car's length away and searched them. MacDicken claims
this search violated his rights under the Fourth Amendment to the United States
Constitution and article I, section 7 of the Washington State Constitution. But as this
court recently held, officers may search an arrestee's person and articles closely
associated with his or her person at the time of arrest without violating either of those
constitutional provisions. State v. Byrd, 178 Wn.2d 611, 625, 310 P.3d 793 (2013).
Applying that rule here, we hold that the bags carried by MacDicken were closely
associated with him at the time of arrest and thus subject to search without a warrant. State v. MacDicken No. 88267-3
FACTS
In her room at a Lynnwood hotel, Krystal Steig was robbed at gunpoint. The
robber took various items, including a laptop and a cell phone, and put them in a
suitcase belonging to Steig's roommate, Thomas Brinldy. As the robber was leaving,
he walked past Brinldy in the hotel stairwell. Brinldy recognized his suitcase and
confronted the robber, who pulled out a gun and pointed it at him. Brinldy quickly
exited the stairwell. Brinldy and Steig called the police to report the robbery and later
identified MacDicken from still photos taken from the hotel's video surveillance
camera.
The following morning, police tracked the stolen cell phone to a hotel in
Edmonds. An officer saw MacDicken leaving the Edmonds hotel and recognized him
as the man Steig and Brinldy had identified as the assailant. MacDicken had two bags
in his possession when the officer saw him: a laptop bag, which he carried, and a
rolling duffle bag, which he was pushing. Officers ordered MacDicken to the ground
and handcuffed him. As MacDicken, still handcuffed, was standing up next to a
patrol car speaking with another officer, an officer moved the bags MacDicken had
been carrying a car's length away and began to search them, without obtaining a
warrant. Inside the laptop bag, police found a handgun, Steig's laptop, a letter
2 State v. MacDicken No. 88267-3
addressed to Steig, and other items. 1 After being asked, MacDicken told police he
had stolen the laptop bag from Steig but denied robbing her with a gun. MacDicken
claimed at a later hearing that he in fact told police that the laptop bag was his, but the
trial court found that testimony not credible.
MacDicken was charged with two counts of first degree robbery (with a firearm
enhancement) and one count of unlawful possession of a firearm in the first degree.
He moved to suppress the evidence from the bags, arguing that the search violated his
rights under the Fourth Amendment to the United States Constitution and article I,
section 7 of the Washington State Constitution. The trial court denied MacDicken's
motion. As part of that ruling, the court concluded that MacDicken did not have
standing to challenge the search of the laptop bag because it was stolen but
acknowledged that under the automatic standing rule, MacDicken had automatic
standing to challenge the search as it related to the unlawful possession of a firearm
charge. The trial court then found that the search was a valid search incident to arrest.
After a trial, the jury found MacDicken guilty on all three counts. MacDicken
appealed and the Court of Appeals affirmed, reasoning that because the bags were
within his reach at the time of the search, the warrantless search was valid as incident
to his lawful arrest. State v. MacDicken, 171 Wn. App. 169, 176, 286 P.3d 413
1 From the record, it does not appear that any significant pieces of evidence were recovered from the rolling duffle bag.
3 State v. MacDicken No. 88267-3
(2012). This court granted MacDicken's subsequent petition for review. State v.
MacDicken, 177 Wn.2d 1004, 300 P.3d 416 (2013).
ISSUE
Was the warrantless search of the bags carried by MacDicken at the time of his
arrest a valid search incident to a lawful arrest?
ANALYSIS
MacDicken claims that the warrantless search of his bags violates his rights
under the Fourth Amendment to the United States Constitution and article I, section 7
of the Washington State Constitution. When a party alleges violations of both of
those provisions, we analyze the Washington State Constitution first because it is
more protective of individual privacy. State v. Walker, 157 Wn.2d 307, 313, 138 P.3d
113 (2006). Article I, section 7 provides that "[n]o person shall be disturbed in his
private affairs, or his home invaded, without authority of law." WASH. CONST. art. I,
§ 7. Warrantless searches violate this provision unless they fall under one of"a few
jealously guarded exceptions." State v. Afana, 169 Wn.2d 169, 176-77, 233 P.3d 879
(201 0). One of those exceptions covers searches incident to lawful arrest. United
States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973).
There are two types of warrantless searches that may be made incident to a
lawful arrest: a search of the arrestee's person and a search of the area within the
arrestee's immediate control. !d.; Byrd, 178 Wn.2d at 616-17. This court recently
4 State v. MacDicken No. 88267-3
examined the historical development of these two types of searches incident to arrest
and the reasons why courts treat them differently. A warrantless search of the
arrestee's person is considered a reasonable search as part of the arrest of the person.
Robinson, 414 U.S. at 225-26. Such a search presumes exigencies and is justified as
part of the arrest; therefore it is not necessary to determine whether there are officer
safety or evidence preservation concerns in that particular situation. Byrd, 178 Wn.2d
at 618. In contrast, a warrantless search of the arrestee's surroundings is allowed only
if the area is within an arrestee's "immediate control." Chime! v. California, 395 U.S.
752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), overruled in part by Arizona v.
Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Such searches are
justified by concerns of officer safety or the preservation of evidence and are limited
to those areas within reaching distance at the time of the search. Gant, 556 U.S. at
351.
In this case, the parties argued over whether the search of bags that were a car's
length away was justified by concerns of officer safety or preservation of evidence.
But as described below, we hold that the search of the bags carried by MacDicken at
the time of his arrest constituted a search of his person. Therefore, we do not analyze
whether the search was a valid search of the area within MacDicken' s immediate
control under Chime! and Gant.
5 State v. MacDicken No. 88267-3
Instead, we look to Byrd, a recent case in which this court upheld the search of
an arrestee's purse that she was holding at the time that she was arrested. Byrd, 178
Wn.2d at 623-24. The court held that a valid search of an arrestee's person included
the articles of an arrestee's person, such as her clothing and the purse that was in her
possession at the time of arrest. !d. at 623. Such a search extends "only to articles 'in
such immediate physical relation to the one arrested as to be in a fair sense a
projection of his person."' !d. (quoting United States v. Rabinowitz, 339 U.S. 56, 78,
70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J., dissenting)). The court defined
articles immediately associated with the arrestee's person as "personal articles in the
arrestee's actual and exclusive possession at or immediately preceding the time of
arrest." Id. The court cautioned that such a search does not include "articles within
the arrestee's reach but not actually in his possession." Id. The court also noted that a
significant delay between the arrest and the search could render the search
unreasonable. !d. at 623-24.
Here, the laptop bag and the rolling duffel bag were in MacDicken's actual and
exclusive possession at the time of his arrest. Therefore, applying the rule from Byrd,
we conclude that the bags were immediately associated with his person. Because
there was no significant delay between the arrest and the search that would render the
search unreasonable, we hold that the search of the bags was a part of the lawful
search ofMacDicken's person pursuant to his arrest. A warrant is not needed for a
6 State v. MacDicken No. 88267-3
search of an arrestee's person, and thus this search was a valid search incident to
arrest under both the federal and state constitutions. 2
CONCLUSION
Both the United States Constitution and the Washington State Constitution
provide protection against warrantless searches, but certain limited searches are
allowed incident to a lawful arrest. This includes a search of the person being
arrested. In Byrd, this court held that a search of the arrestee's person includes a
search of the articles that the arrestee has actual possession of at the time of arrest.
Here, MacDicken had a laptop bag and a rolling duffel bag in his possession when he
was arrested; the police lawfully searched those bags as part of the search of his
person pursuant to his arrest. We affirm the Court of Appeals, albeit for different
reasonmg.
2 In the answer to the petition for review, the State requested that if the court found the search to be invalid, it consider whether there was an alternate basis to uphold the trial court's order: that MacDicken lacked standing to challenge the search as to the robbery charge. Because we hold that the search was a valid search incident to arrest, we do not reach this issue.
7 State v. MacDicken No. 88267-3
WE CONCUR:
8 State v. MacDicken, No. 88267-3 (Gordon McCloud, J., Dissenting)
No. 88267-3
GORDON McCLOUD, J. (dissenting)-The majority upholds the
search of the laptop and rolling duffel bags in this case under a "time of arrest"
rule. Majority at 6. I believe that the "time of arrest" rule is inconsistent with
United States Supreme Court precedent. For that reason, I respectfully
dissent.
The United States Supreme Court has long recognized "the basic rule
that 'searches conducted outside the judicial process, without prior approval
by judge or magistrate, are per se unreasonable under the Fourth
Amendment-subject only to a few specifically established and well-
delineated exceptions."' Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710,
173 L. Ed. 2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357,
88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). "Among the exceptions to the warrant
requirement is a search incident to a lawful arrest [, which] derives from
1 State v. MacDicken, No. 88267-3 (Gordon McCloud, J., Dissenting)
interests in officer safety and evidence preservation that are typically
implicated in arrest situations." Id. (citing Weeks v. United States, 232 U.S.
383,392, 34 S. Ct. 341, 58 L. Ed. 652 (1914); United States v. Robinson, 414
U.S. 218, 230-34, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)). Under the
exception for a "search incident to a lawful arrest," an officer may search only
'"the arrestee's person and the area "within his immediate control"-
construing that phrase to mean the area from within which he might gain
possession of a weapon or destructible evidence."' Id. at 338-39 (quoting
Chime/ v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685
(1969), overruled in part by Gant, 556 U.S. 332). The scope of a search
incident to arrest is strictly limited by the interests in officer safety and
evidence preservation. !d. Thus, "[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. Ed. 2d 777 (1964)).
The majority's "time of arrest" rule, which this court recently affirmed
in State v. Byrd, 178 Wn.2d 611, 310 P.3d 793 (2013), creates an additional
2 State v. MacDicken, No. 88267-3 (Gordon McCloud, J., Dissenting)
search incident to arrest exception, which is contrary to United States
Supreme Court precedent. Under this "time of arrest" exception, the police
may search all "personal articles in the arrestee's actual and exclusive
possession at or immediately preceding the time of arrest," 1 even after such
articles have been reduced to the exclusive control oflaw enforcement and are
completely inaccessible to the arrestee, and thus pose no presumptive risk to
officer safety or evidence preservation.
The majority justifies its "time of arrest" rule by drawing a distinction
between searches of the person incident to arrest, which the majority claims
are governed by Robinson, 414 U.S. 218, and searches of the arrestee's
immediate surroundings, which it claims are governed by Chime/, 395 U.S.
752, and Gant, 556 U.S. 332. Majority at 5. The majority believes that a
Robinson search-which it defines as a search of any "'personal articles in
the arrestee's actual and exclusive possession at or immediately preceding the
time of arrest"'-"presumes exigencies," while a Chime/ search does not. !d.
at 4-6 (quoting Byrd, 178 Wn.2d at 623). Because it concludes that the search
of the bags in this case "constituted a search of [MacDicken's] person," the
1 Majority at 6 (citing Byrd, 178 Wn.2d at 623).
3 State v. MacDicken, No. 88267-3 (Gordon McCloud, J., Dissenting)
majority decides that the search is governed by Robinson as opposed to
Chime! and Gant. Majority at 5. Indeed, the majority believes that Chime!
and Gant are irrelevant to this case. I d. ("we do not analyze whether the search
was a valid search of the area within MacDicken' s immediate control under
Chime! and Gant").
The majority errs. The Fourth Amendment bars all warrantless
searches incident to arrest unless the government proves that an exception
applies under the "'twin rationales of Chime/"' 2-officer safety and evidence
preservation. 3 Robinson is an application of, not an exception to, this rule.
Robinson, 414 U.S. at 226 (explaining that a search ofthe person incident to
lawful arrest is always justified by the Chime! rationales); accord Knowles v.
Jowa,525U.S.113, 116,118, 119S.Ct.484, 142L.Ed.2d492(1998)(noting
that Robinson, 414 U.S. at 234, recognized "two historical rationales for the
2 Gant, 556 U.S. at 342 (quoting Thornton v. United States, 541 U.S. 615, 624, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (O'Connor, J., concurring in part)).
3 Chime!, 395 U.S. at 762-63 ("[The arrestee's person and] the area into which an arrestee might reach ... must ... be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control '-construing that phrase to mean the areas from within which he might gain possession of a weapon or destructible evidence.").
4 State v. MacDicken, No. 88267-3 (Gordon McCloud, J., Dissenting)
'search incident to arrest' exception: (1) the need to disarm the suspect in
order to take him into custody, and (2) the need to preserve evidence for later
use at trial" and holding that these rationales do not justify a "'search incident
to citation"').
Contrary to the majority's reasoning, there is no difference between the
presumptions that govern a Robinson search and those that govern a
Gant/ Chime! search. In both, a presumption of officer danger or evidence
destruction justifies a protective search incident to arrest. See Maryland v.
Buie, 494 U.S. 325, 342 n.6, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990)
(Brennan, J., dissenting) ("Chime! established that police officers may
presume as a matter of law, without need for factual support in a particular
case, that arrestees might take advantage of weapons or destroy evidence in
the area 'within [their] immediate control'; therefore, a protective search of
that area is per se reasonable under the Fourth Amendment.") (first emphasis
added) (alteration in original) (quoting Chime!, 395 U.S. at 763)). 4 But-also
4 In this respect, a search incident to arrest differs from a search based on "exigent circumstances"-in the latter context there is no presumption that any danger justifies the search. E.g., Missouri v. McNeely,_ U.S._, 133 S. Ct. 1552, 1559, 185 L. Ed. 2d 696 (2013) ("To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of the circumstances."); Kentucky v. King, _U.S._, 131 S. Ct. 1849, 1862,
5 State v. MacDicken, No. 88267-3 (Gordon McCloud, J., Dissenting)
contrary to the majority's reasoning-that presumption applies only where
police could reasonably have believed that the area searched was in fact
accessible to the arrestee or a confederate at the time of the search. Gant, 556
U.S. at 344.
As a practical matter, when the search is limited to the arrestee's
"person," the question of access is not subject to dispute. See Chime!, 395
U.S. at 762-63; Robinson, 414 U.S. at 226 (treating the arrestee's person as an
area per se within the arrestee's control). But the question of access is
nevertheless paramount in any search incident to arrest. A court cannot avoid
that question just by labeling the items searched-in this case a shoulder bag
and a piece of rolling luggage-'"proj ection[ s] of [the arrestee's] person."'
Majority at 6 (quoting Byrd, 178 Wn.2d at 623). To do so is to untether the
search incident to arrest exception from its justifying rationales.
This is precisely what the majority's "time of arrest" rule does. Under
that rule, police are simply "entitled" to search any item in the arrestee's
179 L. Ed.2d 865 (20 11) ("Any warrantless entry based on exigent circumstances must, of course, be supported by a genuine exigency."); Brigham City v. Stuart, 54 7 U.S. 398, 406, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) ("In these circumstances, [the warrantless entry was justified because] the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning.").
6 State v. MacDicken, No. 88267-3 (Gordon McCloud, J., Dissenting)
"actual possession" at the time of arrest. Byrd, 178 Wn.2d at 614, 621. This
"entitle[ment]" requires no justification beyond the "authority of a custodial
arrest itself," and it renders the question of access completely irrelevant. Id.
at 614, 618. Thus, under the "time of arrest" rule, police may be "entitled" to
search an item even when there is in fact no possibility that the arrestee could
gain access to it. Id. at 614-15.
This is in direct contradiction to United States Supreme Court
precedent. E.g., United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476,
53 L. Ed. 2d 538 (1977) ("warrantless searches of luggage or other property
seized at the time of an arrest cannot be justified as incident to that arrest ...
[o]nce law enforcement officers have reduced [the property] to their exclusive
control"). A "police entitlement" theory of searches incident to arrest treats
certain items as inherently searchable; it posits that an arresting officer should
not have to forgo a search of these items-the officer's entitlement-just
because that search cannot possibly be justified under Chime!. The Court has
flatly rejected the notion that any such search is permitted under the Fourth
Amendment. Gant, 556 U.S. at 342 (disapproving the "police entitlement"
theory of searches incident to arrest, and contrasting that theory with '"the
7 State v. MacDicken, No. 88267-3 (Gordon McCloud, J., Dissenting)
twin rationales of Chime!"' (quoting Thornton, 541 U.S. at 624 (O'Connor,
J., concurring in part)), 347 ("allow[ing] vehicle searches incident to any
arrest would serve no purpose except to provide a police entitlement, and it is
anathema to the Fourth Amendment to permit a warrantless search on that
basis"). As numerous well-reasoned cases have recognized, the Chime!
rationales are the only justification for a search incident to arrest. 5 There is
no special rule for-and no police entitlement to search-items in the
arrestee's possession at the "time of arrest."
Because I believe that the "time of arrest" rule violates Fourth
Amendment protections, I dissent from the majority's decision to affirm the
Court of Appeals on that basis. Majority at 7 ("We affirm the Court of
Appeals, albeit for different reasoning.").
5 E.g., United States v. Wurie, 728 F.3d 1, 10 (1st Cir. 2013) (discussing Gant' s recognition of "categories of searches that cannot ever be justified under Chimel," and holding that these categories sometimes include searches of items found on the arrestee's person), cert. granted, 187 L. Ed. 2d 848 (2014); United States v. Shakir, 616 F.3d 315, 318 (3d Cir. 2010) (rejecting a "time ofthe arrest" rule and concluding that Gant controls whenever "the item searched is removed from the suspect's control between the time of the arrest and the time of the search"); United States v. Monclavo-Cruz, 662 F.2d 1285, 1287 (9th Cir. 1981) (warrantless search of arrestee's purse "conducted more than an hour after police gained exclusive control of it" invalid under Chadwick).
8 State v. MacDicken, No. 88267-3 (Gordon McCloud, J., Dissenting)
Like every search incident to arrest, the search ofMacDicken's bags is
governed by Chimel and Gant. The Court of Appeals below concluded that
the search was justified under Chimel because "MacDicken could have
possibly reached the bags," which were "not in [the arresting officer's]
exclusive control." State v. MacDicken, 171 Wn. App. 169, 175, 286 P.3d
413 (2012). That conclusion is not warranted by the record.
To be sure, an appellate court may decide that a warrantless search was
permissible as a matter of fact, but only where "the record ... is adequate to
review [the] issue." State v. Scalara, 155 Wn. App. 236, 242, 229 P.3d 889
(20 10) ("unlike in other recent Gant-related appeals, we need not remand for
a further evidentiary hearing"); accord State v. Robinson, 171 Wn.2d 292,
306, 253 P.3d 84 (2011) (remanding for new suppression hearing where,
because trial occurred prior to Gant, "neither the petitioners nor the State had
the incentive or opportunity to develop the factual record before the trial
court").
Contrary to the Court of Appeals' opinion in this case, the record does
not show that MacDicken could have reached into either of the bags at the
time of the search. The trial court below concluded only that "[a]lthough
9 State v. MacDicken, No. 88267-3 (Gordon McCloud, J., Dissenting)
handcuffed, the defendant . . . could still kick at the officers or reach for a
weapon despite the handcuffs." Clerk's Papers (CP) at 65. It is by no means
clear whether the trial court meant that MacDicken could somehow have
reached into the bags-which were at the time of the search "about a car
length away from the defendant"-or whether it meant that MacDicken could
have reached for a weapon located somewhere else. CP at 60. What is clear
is that the trial court did not decide whether the bags had been reduced to the
"exclusive control" of law enforcement at the time of the search. CP at 65-66
("The defendant also invites this court to apply the principles of Gant to this
search incident to arrest of the defendant's person. The court declines to do
so."). Instead, the court applied the two-part test articulated in State v. Smith,
119 Wn.2d 675, 835 P.2d 1025 (1992), abrogated by Byrd, 178 Wn.2d 611,
according to which "'a search incident to arrest is valid under the Fourth
Amendment (1) if the object searched was within the arrestee's control when
he or she was arrested; and (2) if the events occurring after the arrest but before
the search did not render the search unreasonable."' CP at 63 (quoting Smith,
119 Wn.2d at 681 (citing United States v. Turner, 926 F.2d 883, 887 (9th Cir.
10 State v. MacDicken, No. 88267-3 (Gordon McCloud, J., Dissenting)
1991))). This is the "time of arrest" rule, 6 which I believe violates Fourth
Amendment protections.
Because the trial court applied the "time of arrest" rule to the search of
the bags in this case, it did not determine-and the record did not reveal-
whether MacDicken or anyone else could have accessed the bags at the time
of search, or whether instead those bags had been reduced to law
enforcement's "exclusive control." Chadwick, 433 U.S. at 15. Under United
States Supreme Court precedent, that determination is crucial. I would
remand to the trial court with instructions that it make that factual
determination, and I therefore respectfully dissent.
6 See Byrd, 178 Wn.2d at 623-24 (upholding search of purse because "'the purse was within [the defendant's] reach and could even be described as on her person ... at the time of arrest' [and] [t]here was no 'significant delay between the arrest and the search' that would 'render[] the search unreasonable"' (last alteration in original) (quoting State v. Byrd, 162 Wn. App. 612, 618, 258 P.3d 686 (2011) (Brown, J., dissenting); Smith, 119 Wn.2d at 683)).
11 State v. MacDicken, No. 88267-3 Gordon McCloud, J., Dissenting