Commonwealth of Kentucky v. William Bembury ( 2023 )

RENDERED: AUGUST 24, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0018-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2020-CA-1429-MR
FAYETTE CIRCUIT COURT NO. 19-CR-01326
WILLIAM BEMBURY APPELLEE
OPINION OF THE COURT BY JUSTICE LAMBERT
REVERSING
William Bembury (Bembury) entered a guilty plea to one count of
possession of synthetic drugs on the condition that he could appeal the Fayette
Circuit Court’s denial of his motion to suppress evidence recovered from his
backpack. Before the Court of Appeals, Bembury asserted that his backpack
was searched in violation of his rights against unlawful search and seizure
under the Fourth Amendment of the United States Constitution1 and Section
Ten of Kentucky’s Constitution.2 A split Court of Appeals panel reversed and
held that no exception to the rule requiring that searches be supported by a
warrant applied. The Commonwealth now appeals that ruling. After thorough
1 U.S. Const. amend. IV.
2 Ky. Const. § 10.
review, we reverse the Court of Appeals and reinstate the circuit court’s order
denying Bembury’s motion to suppress.
I. FACTS AND PROCEDURAL BACKGROUND
The facts of this case are not in dispute. On August 14, 2019, Officer
Adam Ray (Officer Ray) was assigned to the Bureau of Special Operations,
Bicycle Unit, with the Lexington Police Department. His assignment was to
patrol the downtown entertainment district. At approximately 6 p.m. he and
an Officer Kennedy observed an individual named Joseph Napier (Napier)
approach Bembury on a sidewalk near Phoenix Park. Officer Ray was familiar
with Bembury from his experience patrolling that area. He also knew Bembury
to be an individual that sold synthetic marijuana based on complaints from
security personnel at the Lexington Public Library as well as statements from
individuals who had been arrested for possession of synthetic marijuana and
reported to police that they had purchased the substance from Bembury.
Bembury and Napier had a brief conversation and then began walking
away from the area together. This raised the officers’ suspicions, so they
followed the pair to the courtyard of the Chase Bank building down the street.
Officer Kennedy watched Bembury and Napier as they sat at a picnic table in
the courtyard while Officer Ray positioned himself in the first level of a parking
garage next to the courtyard. Officer Ray had an unobscured view of Bembury
and Napier, although they were sitting with their backs to him. Officer Ray
could not recall if he used binoculars to observe them, but testified it was his
habit to do so. He watched Napier give Bembury an unknown amount of U.S.
2
currency. Bembury then placed the money in his backpack, which was on the
table in front of him. Next, Bembury took a white rolling paper out of his
backpack and reached back into his backpack and took out a substance that
he sprinkled into the rolling paper, rolled into a joint, and handed to Napier.
Napier then put the joint into his backpack and walked away.
The officers followed and stopped Napier. They told him they had just
watched his transaction with Bembury and asked him to give them the joint.
Napier complied with the Officers’ request and told them he had paid Bembury
about five dollars for it. During the summer months, Officer Ray encountered
synthetic marijuana almost every day. Based on his experience, in particular
the odor and appearance of the substance in the joint, he believed it was
synthetic marijuana. At that point, Officer Kennedy stayed with Napier while
Officer Ray rode back to Bembury who was still sitting at a picnic table in the
courtyard of the bank building. Officer Ray told Bembury he was under arrest
and placed him in handcuffs. The officer then performed a cursory “look
through” of Bembury’s backpack, but he stopped the search and decided to
wait for Officer Kennedy to arrive before conducting a more thorough search.
When Officer Kennedy arrived, Officer Ray filled out paperwork while Officer
Kennedy searched Bembury’s backpack. During the search, Officer Kennedy
found a baggie of synthetic marijuana that was approximately the size of a golf
ball, a pack of rolling papers, and seven one-dollar bills. Until it was moved to
perform the search, Bembury’s backpack remained on the picnic table in front
of him. He did not consent to the search.
3
On January 28, 2020, Bembury filed a motion to suppress the evidence
recovered from his backpack. He argued that the warrantless search of his
backpack violated the Fourth Amendment of the U.S. Constitution and Section
Ten of Kentucky’s Constitution. During the suppression hearing that followed,
Officer Ray was the Commonwealth’s only witness, and his testimony
recounted the facts as stated above. Following supplemental memoranda from
both parties, the circuit court entered an opinion and order denying Bembury’s
motion to suppress. The circuit court reasoned that
[i]n [Arizona v. Gant],3 the Supreme Court held a search incident to
a lawful arrest encompasses the search of a vehicle and any
containers found within the vehicle “when the arrestee is within
reaching distance of the vehicle or it is reasonable to believe the
vehicle contains evidence of the offense of arrest.”
The court then relied on an unpublished Court of Appeals opinion, Agee v.
Commonwealth,4 which applied Gant and upheld a warrantless search of a
backpack under factually similar circumstances because the officers had a
reasonable basis to believe the bag contained evidence of Agee’s crime of public
intoxication. Based on Gant and Agee, the circuit court found that the search
of Bembury’s backpack was lawful as a search incident to his lawful arrest
because the officers “had a reasonable belief the backpack contained evidence
of the offense of arrest.”
3 556 U.S. 332 (2009).
4 2010-CA-001122-MR, 2014 WL 3795492 (Ky. App. Aug. 1, 2014).
4
The Court of Appeals disagreed with the circuit court’s ruling and
reversed.5 The court noted that warrantless searches made incident to arrest
are divided into two categories: searches of the arrestee’s person and searches
of the area within the arrestee’s control.6 And, that the latter category of
warrantless search must be justified on the grounds of ensuring the arresting
officer’s safety and to prevent the destruction of evidence.7 The court further
acknowledged that in Gant, the U.S. Supreme Court created an independent
justification for the warrantless search of an arrestee’s vehicle when the
arresting officer has a reasonable belief that the vehicle contains evidence of
the crime of arrest.8
However, the court held that the search of Bembury’s backpack could
not be upheld as a search of the area within his immediate control because at
the time of the search he was handcuffed and therefore did not have the ability
to destroy evidence or pose a threat to the officers’ safety.9 Moreover, it held
that the Gant exception allowing warrantless searches in order to recover
evidence of the crime of arrest applies only to vehicle searches due to the
“circumstances unique to the vehicle context.”10
5 Bembury v. Commonwealth, 2020-CA-1429-MR, 2021 WL 5856104, at *1 (Ky.
App. Dec. 10, 2021).
6 Id. at *2 (citing United States v. Robinson, 414 U.S. 218, 224 (1973)).
7 Bembury, 2021 WL 5856104, at *2 (citing Gant, 556 U.S. at 339).
8 Id. at *2.
9 Id.
10 Id. (quoting Gant, 556 U.S. at 343).
5
The Court of Appeals next addressed whether the search of Bembury’s
backpack could be upheld as a search of his person, noting that the “authority
to search the arrestee's actual person without a warrant has been extended to
include ‘personal property . . . immediately associated with the person of the
arrestee[.]’”11 The court agreed with Bembury’s assertion that his backpack
was more akin to the 200 lbs. double locked footlocker that the U.S. Supreme
Court held could not be searched without a warrant in United States v.
Chadwick than other items on an arrestee’s person that the Supreme Court
and lower federal courts have held can be searched incident to arrest such as a
cigarette packet, a billfold and address book, a wallet, and a purse.12 The court
reasoned that although “the backpack was portable and Bembury had control
over it throughout the time he was observed by the police . . . a backpack is
functionally distinguishable from a cigarette packet, wallet, address book or
even a purse” because “[l]ike luggage, it is intended as a repository of personal
effects . . . and is likely to contain many more items of a personal nature than
the small items recovered directly from the person of an arrestee.”13
Finally, the Court of Appeals held that there was insufficient evidence
presented at the suppression hearing to nevertheless allow the evidence to be
11 Bembury, 2021 WL 5856104, at *3 (quoting United States v. Chadwick, 433
U.S. 1, 15 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565(1991)).
12 Bembury, 2021 WL 5856104, at *3.
13 Id. (internal quotation marks omitted).
6
admitted under the inevitable discovery doctrine.14 Under this doctrine,
“[e]vidence unlawfully obtained by police is nevertheless admissible if the
prosecution can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by lawful
means.”15 The court reasoned that the Commonwealth did not raise its
inevitable discovery argument until after the suppression hearing in its
supplemental memorandum, and that Officer Ray testified that he did not
know if an inventory search of the backpack was conducted by the detention
center and that it was likely returned to Bembury after the synthetic
marijuana, rolling papers, and money were removed from it.16 Judge Taylor
concurred only with the court’s result without separate opinion, and Judge
Larry Thompson dissented without separate opinion.17
The Commonwealth now challenges the Court of Appeals’ ruling before
this Court.
II. ANALYSIS
The Commonwealth contends that the Court of Appeals’ decision directly
conflicts with Agee, the opinion relied upon by the circuit court, and that it
improperly extends the U.S. Supreme Court’s holding in Chadwick. The
Commonwealth further asserts that the search of Bembury’s backpack was
14 Id. at *4.
15 Id. (quoting Dye v. Commonwealth, 411 S.W.3d 227, 238 (Ky. 2013)) (internal
quotation marks omitted).
16 Bembury, 2021 WL 5856104, at *4.
17 Id. at *5.
7
justifiable as a search incident to his lawful arrest. In the alternative, the
Commonwealth argues that the evidence was admissible under the inevitable
discovery doctrine.
In response, Bembury agrees that the Court of Appeals’ ruling conflicts
with Agee but argues that Agee was wrongly decided. He asserts that
Chadwick is dispositive and requires this Court to hold that the search of his
backpack violated his Fourth Amendment rights. He further contends that
there was insufficient evidence presented by the Commonwealth to hold that
the inevitable discovery doctrine applies.
A. Standard of Review
When reviewing a trial court’s ruling on a defendant’s motion to
suppress, an appellate court applies different standards of review to its findings
of fact and conclusions of law, respectively. In accordance with those well-
established standards, we must first determine whether the trial court’s
findings of fact were supported by substantial evidence,18 or, “evidence that a
reasonable mind would accept as adequate to support a conclusion and
evidence that, when taken alone or in the light of all the evidence . . . has
sufficient probative value to induce conviction in the minds of reasonable
men.”19 If the trial court’s fact findings are supported by substantial evidence,
then they are conclusive, and we must then “conduct a de novo review of the
18 See, e.g., Payton v. Commonwealth, 327 S.W.3d 468, 471 (Ky. 2010).
19 Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (defining “substantial
evidence”) (internal quotation marks omitted).
8
trial court's application of the law to those facts to determine whether its
decision is correct as a matter of law.”20 De novo review affords “no deference
to the trial court's application of the law to the established facts.”21
As noted, the facts of this case are uncontested. In denying Bembury’s
motion to suppress, the court made the following pertinent findings of fact: the
investigating officers had reason to believe Bembury had previously trafficked
synthetic marijuana; they observed what they believed to be a hand-to-hand
synthetic marijuana transaction between Napier and Bembury that occurred in
a public area; during the transaction, they saw Bembury reaching into his
backpack to access the illicit substance; they stopped Napier and confirmed
that the substance sold to him was synthetic marijuana based on their
experience; and they arrested Bembury and searched his backpack
immediately following his arrest. We hold these facts are supported by
substantial evidence and now turn to the questions of law presented.
B. The search of Bembury’s backpack was a search of his person incident
to his lawful arrest and did not violate his rights against unlawful
search and seizure.
The Fourth Amendment to the U.S. Constitution provides that
[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be 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.
20 Payton, 327 S.W.3d at 471–72.
21 Horn v. Commonwealth, 240 S.W.3d 665, 669 (Ky. App. 2007).
9
In a similar manner, Section 10 of the Kentucky Constitution states that
[t]he people shall be secure in their persons, houses, papers and
possessions from unreasonable search and seizure; and no
warrant shall issue to search a place, or seize any person or thing,
without describing them as nearly as may be, nor without probable
cause supported by oath or affirmation.
For over a century, this Court has recognized that “there is no substantial
difference between the wording of the clause in the federal and state
Constitutions,” and that it is therefore appropriate to look to U.S. Supreme
Court precedent for guidance in construing Section 10.22
It is well-established under both Kentucky and U.S. Supreme Court
jurisprudence that “all searches without a valid search warrant are
unreasonable unless shown to be within one of the exceptions to the rule that
a search must rest upon a valid warrant.”23 Accordingly, in order for us to hold
that Bembury’s Fourth Amendment rights were violated by the search of his
backpack, we must find that the officers’ actions constituted a search, that
they acted without a warrant or consent, and that no established exception to
the warrant requirement applies.24 It is not disputed that the officer’s actions
constituted a search and that the search was conducted without a warrant or
Bembury’s consent. The dispositive question is therefore whether an exception
22 Youman v. Commonwealth, 224 S.W. 860, 862 (Ky. 1920).
23 Commonwealth v. Reed, 647 S.W.3d 237, 243 (Ky. 2022) (quoting Cook v.
Commonwealth, 826 S.W.2d 329, 330 (Ky. 1992)). Accord Katz v. United States, 389
U.S. 347, 357 (1967) (“[S]earches 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.”).
24 See Reed, 647 S.W.3d at 243.
10
to the warrant requirement applies. More specifically, whether the search was
justifiable as being incident to Bembury’s lawful arrest.
Recently, in Riley v. California,25 which addressed whether cell phone
data can be searched incident to arrest, the U.S. Supreme Court discussed the
history of its cases involving the search incident to arrest exception. It began
its discussion with Chimel v. California,26 which it credited for “[laying] the
groundwork for most of the existing search incident to arrest doctrine.”27 In
Chimel, police officers arrested Chimel in his home and then, acting without a
search warrant, proceeded to search the entirety of his three-bedroom home,
including his garage and attic.28 In addressing Chimel’s appeal, the Court
crafted the following rule for determining the reasonableness of a search
incident to arrest:
When an arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapons that
the latter might seek to use in order to resist arrest or effect his
escape. Otherwise, the officer's safety might well be endangered,
and the arrest itself frustrated. In addition, it is entirely
reasonable for the arresting officer to search for and seize any
evidence on the arrestee's person in order to prevent its
concealment or destruction. . . . 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 area
from within which he might gain possession of a weapon or
destructible evidence.29
25 573 U.S. 373 (2014).
26 395 U.S. 752 (1969).
27 Riley, 573 U.S. at 382-83.
28 Id. at 383.
29 Id. (quoting Chimel, 395 U.S. at 762-63).
11
The Court held that the search of Chimel’s home was unlawful “because it was
not needed to protect officer safety or to preserve evidence.”30
The Riley Court next discussed that four years after Chimel, in United
States v. Robinson,31 the Court applied Chimel’s analysis within the context of a
search of an arrestee’s person incident to arrest.32 In Robinson, a police officer
arrested Robinson for driving with a revoked license, conducted a pat down
search, and felt an object he could not identify in Robinson’s coat pocket.33
The officer removed the object, a crumpled cigarette packet, and discovered
several heroin capsules inside.34 The Court of Appeals held that the officer’s
search of Robinson was unreasonable “because Robinson was unlikely to have
evidence of the crime of arrest on his person,” and because “it could not be
justified as a protective search for weapons.”35 The Riley Court said the
following of the Robinson decision to reverse the Court of Appeals:
This Court reversed, rejecting the notion that “case-by-case
adjudication” was required to determine “whether or not there was
present one of the reasons supporting the authority for a search of
the person incident to a lawful arrest.” As the Court explained,
“[t]he authority to search the person incident to a lawful custodial
arrest, while based upon the need to disarm and to discover
evidence, 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.”
Instead, a “custodial arrest of a suspect based on probable cause is
30 Riley, 573 U.S. at 383.
31 414 U.S. 218 (1973).
32 Riley, 573 U.S. at 383.
33 Id.34 Id.35 Id. at 383-34.
12
a reasonable intrusion under the Fourth Amendment; that
intrusion being lawful, a search incident to the arrest requires no
additional justification.”
The Court thus concluded that the search of Robinson was
reasonable even though there was no concern about the loss of
evidence, and the arresting officer had no specific concern that
Robinson might be armed. In doing so, the Court did not draw a
line between a search of Robinson's person and a further
examination of the cigarette pack found during that search. It
merely noted that, “[h]aving in the course of a lawful search come
upon the crumpled package of cigarettes, [the officer] was entitled
to inspect it.” A few years later, the Court clarified that this
exception was limited to “personal property ... immediately
associated with the person of the arrestee.” United States v.
Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977)
(200–pound, locked footlocker could not be searched incident to
arrest), abrogated on other grounds by California v. Acevedo, 500
U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).36
The Court clarified that Robinson is its only decision that applies Chimel to the
search of an item found on an arrestee’s person.37 Nevertheless, it went on to
note that “[l]ower courts applying Robinson and Chimel . . . have approved
searches of a variety of personal items carried by an arrestee,”38 including a
billfold and address book,39 a wallet,40 and a purse.41 The Court unequivocally
disagreed with the government’s argument that “a search of all data stored on a
cell phone is ‘materially indistinguishable’ from searches of these sorts of
36 Id.37 Id. at 392.
38 Id.
39 United States v. Carrion, 809 F.2d 1120 (5th Cir. 1987).
40 United States v. Watson, 669 F.2d 1374 (11th Cir. 1982).
41 United States v. Lee, 501 F.2d 890 (D.C. Cir. 1974).
13
physical items,” stating: “[m]odern cell phones, as a category, implicate privacy
concerns far beyond those implicated by the search of a cigarette pack, a
wallet, or a purse.”42
Finally, the Riley Court discussed Gant, which it identified as the final
case in the “search incident to arrest trilogy.”43 Gant addressed the
circumstances under which an arrestee’s vehicle may be searched incident to
his or her arrest.44 The Gant Court concluded “that Chimel could authorize
police to search a vehicle ‘only when the arrestee is unsecured and within
reaching distance of the passenger compartment at the time of the search.’”45
However, the Gant Court added “an independent exception for a warrantless
search of a vehicle's passenger compartment [and any containers therein] when
it is reasonable to believe evidence relevant to the crime of arrest might be
found in the vehicle.”46 This exception did not flow from Chimel and is specific
to vehicle searches due to the “circumstances unique to the vehicle context.”47
From the foregoing discussion, we discern that the U.S. Supreme Court
distinguishes between and applies different standards to: (1) a search of an
arrestee’s person; (2) a search of the area within the arrestee’s immediate
control; and (3) a search of an arrestee’s vehicle and the containers therein.
42 Riley, 573 U.S. at 393.
43 Id. at 384.
44 Id.45 Id. at 385.
46 Id. (internal quotation marks omitted).
47 Id.14
When an arrestee’s person is searched pursuant to a valid arrest, “a
search incident to the arrest requires no additional justification” because “[a]
custodial arrest of a suspect based on probable cause is a reasonable intrusion
under the Fourth Amendment,” and “[i]t is the fact of the lawful arrest which
establishes the authority to search[.]”48 Stated differently, an officer may
search an arrestee’s person following a lawful arrest without needing to justify
the search by showing it was necessary to ensure the officer’s safety or to
prevent the destruction of evidence because those concerns are inherent in
every custodial arrest. In contrast, when an arresting officer searches the area
within the arrestee’s immediate control without a warrant, the search must be
limited to an area from which the arrestee could either obtain a weapon or
destroy evidence.49 Finally, police may search an arrestee’s vehicle if the
arrestee is unsecured and can access the vehicle or if the officer has a
reasonable belief that the vehicle may contain evidence of the crime of arrest.
Pertinent to this case, and as noted by the Riley Court, the search of an
arrestee’s “person” includes personal property immediately associated with the
person of the arrestee so long as the search is not “remote in time or place from
48 Robinson, 414 U.S. at 235.
49 Chimel, 395 U.S. at 768 (“The search here went far beyond the petitioner's
person and the area from within which he might have obtained either a weapon or
something that could have been used as evidence against him. There was no
constitutional justification, in the absence of a search warrant, for extending the
search beyond that area.”).
15
the arrest.”50 This was the rule established by Chadwick, upon which the
Court of Appeals’ opinion below relies.
In Chadwick, Amtrak railroad officials in San Diego observed Gregory
Machado and Bridget Leary load a 200 lbs. double locked footlocker onto a
train bound for Boston.51 The trunk raised suspicions due to its unusually
heavy weight and because it was leaking talcum powder, a substance used to
mask the smell of marijuana.52 When the footlocker arrived in Boston, federal
agents observed Machado and Leary claim the footlocker and later watched as
Machado and Joseph Chadwick loaded it into the trunk of Chadwick’s car
while Leary waited in the car.53 Before the suspects closed the trunk, the
agents arrested Machado, Leary, and Chadwick.54
The arrestees were then transported to the Federal Building in Boston
while agents followed in Chadwick’s car with the footlocker.55 The footlocker
remained under the exclusive control of the officers at all times following the
arrests and was ultimately placed in the Federal Building.56 The warrantless
search of the trunk was not conducted by the officers until an hour and a half
after the arrests; a large amount of marijuana was found.57 Chadwick,
50 Chadwick, 433 U.S. at 15.
51 Id. at 3.
52 Id.53 Id. at 4.
54 Id.55 Id.56 Id.57 Id. at 4-5.
16
Machado, and Leary were charged with possession of marijuana with intent to
distribute and conspiracy and moved to suppress the evidence found in the
footlocker.58 The district court granted the motion, and the Court of Appeals
affirmed on the basis that the search was not justified as a search incident to
lawful arrest.59
The U.S. Supreme Court affirmed.60 The Court began by rejecting the
government’s contention that the Fourth Amendment Warrant Clause only
protects an individual’s home.61 The Court reiterated its previous tenet that
“the Fourth Amendment protects people, not places[.]”62 Specifically, “it
protects people from unreasonable government intrusions into their legitimate
expectations of privacy.”63 The Court held that
[b]y placing personal effects inside a double-locked footlocker,
respondents manifested an expectation that the contents would
remain free from public examination. No less than one who locks
the doors of his home against intruders, one who safeguards his
personal possessions in this manner is due the protection of the
Fourth Amendment Warrant Clause. There being no exigency, it
was unreasonable for the Government to conduct this search
without the safeguards a judicial warrant provides.64
The Court also rejected the Government’s argument “that the
Constitution permits the warrantless search of any property in the possession
58 Id.59 Id. at 5-6.
60 Id. at 6.
61 Id. at 6-7.
62 Id. at 7 (quoting Katz, 389 U.S. at 351) (internal quotation marks omitted).
63 Chadwick, 433 U.S. at 7.
64 Id. at 11.
17
of a person arrested in public, so long as there is probable cause to believe that
the property contains contraband or evidence of crime,” and that the search of
the footlocker was reasonable because it was seized contemporaneously with
the arrests and was searched as soon as “practicable” thereafter.65 The Court
opined that “the reasons justifying search in a custodial arrest are quite
different” because “there is always some danger that the person arrested may
seek to use a weapon, or that evidence may be concealed or destroyed.”66
Accordingly,
[s]uch searches may be conducted without a warrant, and they
may also be made whether or not there is probable cause to believe
that the person arrested may have a weapon or is about to destroy
evidence. The potential dangers lurking in all custodial arrests
make warrantless searches of items within the “immediate
control” area reasonable without requiring the arresting officer
to calculate the probability that weapons or destructible
evidence may be involved. United States v. Robinson, 414 U.S.
218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) . . . However, warrantless
searches of luggage or other property seized at the time of an arrest
cannot be justified as incident to that arrest either if the search is
remote in time or place from the arrest, . . . or no exigency exists.
Once law enforcement officers have reduced luggage or other
personal property not immediately associated with the person
of the arrestee to their exclusive control, and there is no
longer any danger that the arrestee might gain access to the
property to seize a weapon or destroy evidence, a search of
that property is no longer an incident of the arrest.67
The Court held that “[h]ere the search was conducted more than an hour after
federal agents had gained exclusive control of the footlocker and long after
65 Id. at 14.
66 Id.
67 Id. at 14-15 (internal citations and quotation marks omitted) (emphasis
added).
18
respondents were securely in custody; the search therefore cannot be viewed as
incidental to the arrest[.]”68
With the foregoing precedents in mind, the issue now before this Court is
whether the search of Bembury’s backpack was justifiable as a search incident
to his lawful arrest. To resolve this issue, we must decide, as a matter of first
impression, whether Bembury’s backpack was an item of “personal property . .
. immediately associated with [his] person,”69 or whether it was “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.”70
If the backpack is properly considered part of Bembury’s “person,” then the
search was lawful as no additional justification for the search other than it
being incident to his arrest was needed. However, if the backpack was instead
“the area within his immediate control,” we would then need to address
whether the search of the backpack was justified based on officer safety or the
preservation of evidence.
As the U.S. Supreme Court has not yet directly opined on this issue,
lower federal and state courts have been left to our own devices in determining
how to draw the line between what constitutes a “Robinson search” of an
arrestee’s person and a “Chimel search” of the area within an arrestee’s
immediate control when a portable container capable of carrying items—
68 Id. at 15.
69 Id.
70 Riley, 573 U.S. at 383 (quoting Chimel, 395 U.S. at 762-63).
19
purses, backpacks, suitcases, briefcases, gym bags, computer bags, fanny
packs, etc.—are concerned. Unsurprisingly, there is little uniformity to speak
of in the manner in which our nation’s courts have addressed this issue.
Indeed, many have not yet parsed the issue in those exact terms. One test,
however, has gained some traction in a handful of jurisdictions and we believe
its adoption in this Commonwealth will provide uniformity and clear authority
for our bench, bar, and law enforcement in determining when such items may
lawfully searched incident to arrest.
The test, as coined by the Washington Supreme Court, is known as the
“time of arrest” rule. Washington’s highest court explicitly adopted this test in
State v. Byrd.71 In that case, Lisa Byrd was a passenger in a stolen vehicle that
was stopped by the police.72 An officer arrested Byrd while she was sitting in
the passenger seat with her purse on her lap.73 Before removing her from the
vehicle, the officer took her purse and sat it on the ground nearby.74 The
officer then placed Byrd in his cruiser, and returned to the purse within
moments to search it; methamphetamine was found therein.75 The trial court
granted Byrd’s motion to suppress the evidence found in her purse, and the
Court of Appeals affirmed.76 Relying on Gant, the Court of Appeals held that
71 310 P.3d 793 (Wash. 2013).
72 Id. at 795.
73 Id.
74 Id.
75 Id.
76 Id.
20
the search was not incident to her arrest “[b]ecause Byrd was restrained and
could not obtain a weapon from or destroy evidence in her purse when [the
officer] searched it[.]”77
The Washington Supreme Court reversed. It began by discussing that
unlike searches of an arrestee’s surroundings or “grab area,” “[t]he authority to
search an arrestee's person and personal effects flows from the authority of a
custodial arrest itself.”78 Moreover, it noted that “exigencies are presumed
when an officer searches an arrestee’s person,” and that “[t]he 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.”79 And, nothing in Gant “requires case-specific
showings of officer safety or evidence preservation to justify the search of an
arrestee’s person,” as that case only concerned “searches of the area
immediately around the arrestee, not the arrestee’s person.”80
The Court then turned to the issue of whether Byrd’s purse was part of
her person at the time of her arrest.81 It cited language from Chadwick that
“[requires] Chimel justification only for searches of ‘personal property not
immediately associated with the person of the arrestee,’” and noted the time of
77 Id.
78 Id. at 796 (quoting 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[.]”)).
79 Byrd, 310 P.3d at 797.
80 Id.
81 Id.
21
arrest rule can be used “to draw a bright line between [the] two prongs of the
search incident to arrest exception.”82 It explained:
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. . . . 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. The time of arrest rule recognizes that the same
exigencies that justify searching an arrestee prior to placing him
into custody extend not just to the arrestee's clothes, however we
might define them, but to all articles closely associated with his
person.83
Importantly, the Court went on to
caution that the proper scope of the time of arrest rule is narrow,
in keeping with this “jealously guarded” exception to the warrant
requirement. 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. . . . 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[.]84
82 Id. at 798.
83 Id. (internal citation omitted).
84 Id. at 799 (internal citations omitted) (emphasis added).
22
Relying on this rule, the Court held that “because Byrd’s purse was on her lap
at the time of her arrest, it was an article on her person.”85
Two years after Byrd, the Washington Supreme Court clarified what is
meant by “immediately preceding the time of arrest” in State v. Brock.86 In
Brock, an officer observed Antoine Brock trespassing in a park bathroom and
waited for him to exit.87 When Brock emerged from the bathroom the officer
had Brock remove the backpack he was carrying and conducted a Terry88 stop
and frisk.89 The officer then had Brock walk with him to his vehicle so that he
could run the identification information Brock gave him through a database.90
For safety reasons, the officer carried Brock’s backpack and placed it on the
passenger seat of his vehicle while Brock stood 12-15 feet away from the truck
on a curb.91
After determining that Brock had given him false information, the officer
placed him under arrest but did not handcuff him.92 The officer left Brock
standing on the curb and returned to his vehicle to search his backpack; the
85 Id. at 800. See also, State v. MacDicken, 319 P.3d 31 (Wash. 2014) (applying
the time of arrest rule and upholding search of a laptop bag and rolling duffel bag that
were in the possession of the arrestee when he was stopped by law enforcement).
86 355 P.3d 1118 (Wash. 2015).
87 Id. at 1119.
88 See Terry v. Ohio, 392 U.S. 1 (1968).
89 Brock, 355 P.3d at 1120.
90 Id.91 Id.92 Id.23
officer found marijuana and methamphetamine inside.93 The officer then
walked back over to Brock, handcuffed him, and placed him in his vehicle.94
The entire encounter, from initial contact to arrest, lasted about 10 minutes.95
The trial court denied Brock’s motion to suppress the evidence found in
his backpack, but the Court of Appeals reversed based on its conclusion that
“Brock did not have actual, exclusive possession of the backpack ‘immediately
preceding’ arrest.”96 In addressing the meaning of “immediately preceding
arrest” the Brock Court noted that, pursuant to Byrd:
[t]he 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.... 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.97
The Court therefore rejected Brock’s argument that his physical separation
from the backpack eliminated any safety or evidence preservation concerns
associated with the backpack because he could no longer reach it.98 It
reasoned:
When [a] personal item is taken into custody as a part of the
arrestee's person, the arrestee's ability to reach the item during the
arrest and search becomes irrelevant.
93 Id.94 Id.95 Id.96 Id.97 Id. at 1121-22.
98 Id. at 1122.
24
Rather, the safety and evidence preservation exigencies that justify
this “time of arrest” distinction stem from the safety concerns
associated with the officer having to secure those articles of
clothing, purses, backpacks, and even luggage, that will travel with
the arrestee into custody. Because those items are part of the
person, we recognize the practical reality that the officer seizes
those items during the arrest. From that custodial authority flows
the officer's authority to search for weapons, contraband, and
destructible evidence.99
[…]
Although we must draw these exceptions to the warrant
requirement narrowly, we do not draw them arbitrarily; the
exception must track its underlying justification. 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.100
The Court held that the search of the backpack was a lawful search incident to
Brock’s arrest, reasoning that “[o]nce the arrest process had begun, the
passage of time prior to the arrest did not render it any less a part of Brock’s
arrested person.”101
The Supreme Courts of Illinois and North Dakota, as well as the Texas
Court of Criminal Appeals have adopted identical rules in determining when
the search of a container constitutes a search of an arrestee’s person.
99 Id.
100 Id. at 1123 (emphasis added).
101 Id.
25
In People v. Cregan, the Supreme Court of Illinois upheld the search of a
laundry bag and a wheeled luggage bag.102 The arrestee was carrying both
bags when officers stopped him, arrested him, and placed him in handcuffs.103
The officers then searched both bags and found cocaine in one of them.104 The
Cregan Court declined to define “‘immediately associated’ in terms of the
nature or character of the object rather than in terms of the defendant’s
connection to the object at the time of arrest” as it felt it would result in “an
unworkable rule and [produce] unpredictable results.”105 Instead, it held that
personal items such as cigarette packs found in pockets, wallets,
or purses may be searched incident to arrest not because they are
by their very nature particularly personal to the individual, but
because they are in such close proximity to the individual at the
time of his arrest. In these cases, the personal nature of the object
is merely a proxy for its presence in the individual's possession.
The true measure of whether an object, whether it is a cigarette
pack or a suitcase, is “immediately associated” with an arrestee is
whether he is in actual physical possession of the object at the
time of his arrest.
Under this test if the arrestee is, at the time of his arrest, in actual
physical possession of a bag, it is immediately associated with the
arrestee and is searchable, whether it is a bag of groceries being
carried or wheeled in a “grannie cart,” a duffle bag slung over one
shoulder, or a nylon bag being pulled behind him on wheels. The
use to which the bag is being put—as luggage for a traveler or to
haul dirty clothing to a laundromat—is irrelevant. The sole
consideration is whether he is in actual physical possession of the
object. If it is not in his actual physical possession, like the
footlocker in Chadwick, a warrantless search may be justified on
102 10 N.E.3d 1196 (Ill. 2014).
103 Id. at 1198.
104 Id. at 1999.
105 Id. at 1205.
26
some other basis, but not as a search of the person incident to his
arrest.106
Similarly, in State v. Mercier, the Supreme Court of North Dakota
adopted the time of arrest rule and upheld the search of an arrestee’s
backpack.107 In Mercier, police responded to an attempted robbery call and
stopped Claude Mercier because he matched the description provided by the
victim.108 When asked, Mercier told the officers that his identification was in
his backpack at a house across the street.109 When an officer retrieved the
backpack, an individual at the home told him “This is [Mercier’s].”110 When the
officer returned with the backpack Mercier confirmed that it was his, but
refused to let the officers search it.111 Instead, the officers allowed Mercier to
go through the backpack slowly to retrieve his identification.112 After running
Mercier’s identification through dispatch, the officers discovered that he had an
active arrest warrant, arrested him, and placed him in the back of a squad
car.113 The officers then searched the backpack and found several items that
had been reported stolen, methamphetamine, and drug paraphernalia.114
106 Id. at 1207 (internal citations omitted).
107 883 N.W.2d 478 (N.D. 2016).
108 Id. at 482.
109 Id.110 Id.111 Id.112 Id.113 Id.114 Id.27
The North Dakota Supreme Court upheld the trial court’s denial of
Mercier’s motion to suppress. Citing Byrd, Brock, and Creagan, it concluded
that whether a personal item should be considered part of an arrestee’s person
“turns on whether the arrestee had ‘actual and exclusive possession at or
immediately preceding the time of arrest.’”115 The court held that “Mercier had
the backpack in his immediate possession prior to being restrained because
the officers were allowing him to search through it to obtain his
identification.”116 The court further noted that “[h]aving no other place to store
it, Mercier would have had to bring the backpack along with him into
custody.”117 It reasoned that
[i]t would be illogical to require police officers to leave the backpack
on the public street without checking it, posing a threat to the
public and the possibility of its being stolen. Similarly, it would be
illogical for the officers to take it with them to the correctional
center or police station without checking it, posing a threat to
themselves, the arrestee, and the public. The officers would have
been entitled—and expected—to do an inventory search on the
backpack upon its arrival at the police station or correctional
center. See Illinois v. Lafayette, 462 U.S. 640, 648, 103 S.Ct.
2605, 77 L.Ed.2d 65 (1983) (“[I]t is not ‘unreasonable’ for police, as
part of the routine procedure incident to incarcerating an arrested
person, to search any container or article in his possession, in
accordance with established inventory procedures.”). Such an
inventory search would have uncovered the contraband found in
Mercier's backpack.118
115 Id. at 490.
116 Id. at 492.
117 Id.
118 Id. at 492-93.
28
The Court held: “[b]ecause Mercier had the backpack in his actual possession
immediately preceding his lawful arrest, we conclude a search thereof was
reasonable.”119
Finally, a plurality of Texas’ highest court for criminal cases has
explicitly adopted the time of arrest rule, and the Indiana Court of Appeals has
at least impliedly done the same. In Price v. State, the Texas Court of Appeals,
citing and discussing Creagan, MacDicken, supra, and Mercier, held
at least where—as in the instant case—an arrestee is in actual
possession of a receptacle at the time of, or reasonably
contemporaneously to, his custodial arrest, and that receptacle
must inevitably accompany him into custody, a warrantless search
of that receptacle at or near the time of the arrest is reasonable
under the Fourth Amendment as a search incident to the arrestee's
person. Such a search requires no greater justification than the
fact of the lawful arrest itself. Application of this principle does not
turn on the specific nature or character of the receptacle, as the
court of appeals believed, but merely on whether it was in the
arrestee's possession at the time of arrest, and whether it would
inevitably accompany him into custody.120
In State v. Crager, citing, but not discussing, Mercier, Brock, and Creagan, the
Indiana Court of Appeals held:
The record reveals that Crager was wearing the backpack at the
time [the officer] stopped him and initiated an arrest. [The officer]
asked Crager to place the backpack he was wearing on the ground.
[The officer] searched the backpack at the time or very near to the
time of Crager's arrest. We also note [the officer’s] testimony that
he could not have left the backpack with the motorcycle because it
was his responsibility to protect Crager's property and secure his
possessions. We conclude that the backpack was immediately
associated with Crager and that the search was reasonable under
119 Id. at 493.
120 662 S.W.3d 428, 438 (Tex. Crim. App. 2020).
29
the circumstances and did not violate Crager's rights under the
Fourth Amendment.121
The dissent argues that the time of arrest rule provides “absolutely no
limit to the items police can search as an extension of the arrestee’s person.
The only safeguard is that the item must be something that the police will not
leave at the site of the arrest.” This argument is not a fair representation of the
rule’s requirements and is clearly contradicted by State v. Alexander.122
In Alexander, the Washington Court of Appeals reversed the trial court’s
denial of Heather Alexander’s motion to suppress based on its determination
that “the State failed to establish that Alexander had actual and exclusive
possession of [a] backpack at or immediately preceding her arrest[.]”123 An
officer responding to a trespassing report approached Alexander and a male
individual, Delane Slater, while they were sitting in a field marked with “no
trespass” signs.124 After the officer informed the pair that they were
trespassing he conducted a record’s check on Alexander and discovered she
had an active Department of Corrections (DOC) warrant, but Slater did not.125
While speaking to Alexander, the officer noticed a pink backpack sitting
directly behind Alexander which she indicated belonged to her.126 Based on
121 113 N.E.3d 657, 663-64 (Ind. Ct. App. 2018).
122 449 P.3d 1070 (Wash. 2019).
123 Id. at 1071.
124 Id.
125 Id. at 1072.
126 Id.
30
Alexander’s DOC warrant, the officer placed her under arrest.127 As Slater was
free to leave, he offered to take her backpack with him, and she indicated to
the officer that she wanted him to take it.128 The officer would not let him take
the backpack and stated that it would be searched incident to Alexander’s
arrest and therefore had to remain with her.129 The officer walked Alexander
and the backpack to his patrol vehicle and searched the backpack while it was
on the top of the truck after placing Alexander in the back seat of the vehicle
and found a controlled substance in it.130
The Washington Court of Appeals held that the search of the backpack
was not a search of Alexander’s person incident to her arrest.131 The court
noted that unlike the facts of Byrd, MacDicken, and Brock, where the arrestee’s
were each seen carrying or holding the container at issue, “Alexander’s
backpack was merely sitting behind her at the time of her arrest. The State
points to no evidence that Alexander was holding, wearing, or carrying the
backpack at any time during her contact with [the officer].”132 Moreover, “[the
officer] himself testified that no one had reported seeing Alexander carrying the
127 Id.
128 Id.
129 Id.
130 Id.
131 Id.
132 Id. at 1075.
31
backpack at an earlier time.”133 Therefore, the trial court’s findings established
“at most, that Alexander could immediately have reduced the backpack to her
actual possession, i.e., that Alexander had dominion and control—and thus
constructive possession—over the backpack.”134 In addition, the State had not
shown that the backpack was an item that would necessarily travel with
Alexander to jail:
Slater, about whom [the officer] expressed no safety concerns,
offered to take the backpack, and Alexander desired that Slater
take it. Under these circumstances, Alexander's backpack was not
an item immediately associated with her person that would
necessarily travel to jail with her. Rather, the only reason the
backpack traveled to jail with Alexander was because [the officer]
decided that it would. But the scope of the arrestee's person is
determined by what must necessarily travel with an arrestee to jail,
not what an officer decides to take to jail. 135
[…]
In short, the trial court expanded the arrestee's person to include
any item in proximity to and owned by the arrestee if it is
reasonable for the arresting officer to take the item to jail. But as
discussed, the arrestee's person is limited to those items that are
within the arrestee's actual and exclusive possession at or
immediately preceding the time of arrest, and the State cites no
authority for the proposition that proximity and ownership alone
constitute actual and exclusive possession.136
We therefore disagree with the dissent’s assertion, as the time of arrest rule
requires both that an arrestee have actual and exclusive, as opposed to
133 Id.
134 Id.
135 Id. at 1076.
136 Id. at 1077.
32
constructive, possession at or immediately preceding the time of arrest and
that that the item must necessarily travel with them to jail.
One of the only courts to expressly reject the time of arrest rule is the
Federal Court of Appeals for the Tenth Circuit in an opinion cited by the
dissent: United States v. Knapp.137 The Knapp Court rejected the rule based on
its conclusion that, under Robinson, a search of an arrestee’s person can never
include any item not found within the arrestee’s clothing:
To the extent the government suggests a construction that
includes more than the arrestee’s immediate person, worn
clothing, or containers concealed within her clothing, we decline to
adopt it. . . . The better formulation, we believe, would be to limit
Robinson to searches of an arrestee’s clothing, including containers
concealed under or within her clothing. Accordingly, visible
containers in an arrestee’s hand such as Ms. Knapp’s purse are
best considered to be within the area of an arrestee’s immediate
control — thus governed by Chimel — the search of which must be
justified in each case.
Respectfully, we cannot agree that what constitutes an arrestee’s person
should be limited in this manner. We again acknowledge that the U.S.
Supreme Court has not yet spoken on the issue, which of course means there
is no holding from that Court stating that an arrestee’s person cannot include
loose containers carried outside an arrestee’s clothing. And several statements
from the Court, albeit in dicta, strongly suggest that it would consider the
search of an arrestee’s “person” to include loose containers carried outside of
an arrestee’s clothing.
137 917 F.3d 1161 (10th Cir. 2019).
33
In addition to the excerpt from Riley quoted below, Chadwick provides
that the search of property is no longer incident to arrest “once law
enforcement officers have reduced luggage or other personal property not
immediately associated with the person of the arrestee to their exclusive
control[.]”138 This statement implies that personal property, such as luggage,
that is immediately associated with an arrestee could be searched incident to
arrest. Most recently, in Birchfield v. North Dakota, the Court noted that
[o]ne Fourth Amendment historian has observed that, prior to
American independence, “[a]nyone arrested could expect that not
only his surface clothing but his body, luggage, and saddlebags
would be searched and, perhaps, his shoes, socks, and mouth as
well.” W. Cuddihy, The Fourth Amendment: Origins and Original
Meaning 602–1791, p. 420 (2009).
No historical evidence suggests that the Fourth Amendment
altered the permissible bounds of arrestee searches.139
Additionally, we do not believe that the Court would find an arrestee’s
privacy interests in such containers to be significant enough that a search
would constitute more than a minor additional intrusion in relation to the
arrest itself. As discussed, searches of an arrestee’s “person” pursuant to his
or her lawful arrest is an exception to the warrant requirement that does not
require justification based on officer safety or the preservation of evidence.
That is, unless “privacy-related concerns are weighty enough” that the search
constitutes are more than a “minor additional [intrusion] compared to the
substantial government authority exercised in taking [an arrestee] into
138 Chadwick, 433 U.S. at 15 (emphasis added).
139 579 U.S. 438, 458 (2016) (emphasis added).
34
custody.”140 Previous instances of a search being “a substantial invasion
beyond the arrest itself”141 were the top to bottom search of a house in Chimel
and the search of two arrestees’ cellphones in Riley. In contrast, in Maryland
v. King, the Court held that the “the need of law enforcement officers in a safe
and accurate way to process and identify persons and possessions taken into
custody” outweighed an arrestee’s privacy interest in his own DNA.142
We therefore disagree with the dissent’s argument that the search of an
unlocked backpack should be considered on par with the privacy interests in
cases like Chimel and Riley such that an exception to the warrant requirement
is trumped. As the U.S. Supreme Court said itself in Riley:
Robinson is the only decision from this Court applying Chimel to a
search of the contents of an item found on an arrestee's person. In
an earlier case, this Court had approved a search of a zipper bag
carried by an arrestee, but the Court analyzed only the validity of
the arrest itself. See Draper v. United States, 358 U.S. 307, 310–
311, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Lower courts applying
Robinson and Chimel, however, have approved searches of a variety
of personal items carried by an arrestee. See, e.g., United States v.
Carrion, 809 F.2d 1120, 1123, 1128 (C.A.5 1987) (billfold and
address book); United States v. Watson, 669 F.2d 1374, 1383–1384
(C.A.11 1982) (wallet); United States v. Lee, 501 F.2d 890, 892
(C.A.D.C.1974) (purse).
The United States asserts that a search of all data stored on a
cell phone is “materially indistinguishable” from searches of
these sorts of physical items. That is like saying a ride on
horseback is materially indistinguishable from a flight to the moon.
Both are ways of getting from point A to point B, but little else
justifies lumping them together. Modern cell phones, as a
category, implicate privacy concerns far beyond those
140 Riley, 573 U.S. at 391-92.
141 Id. at 392.
142 569 U.S. 435, 438 (2013) (“The government interest is not outweighed by
respondent's privacy interests.”).
35
implicated by the search of a cigarette pack, a wallet, or a
purse. A conclusion that inspecting the contents of an
arrestee's pockets works no substantial additional intrusion on
privacy beyond the arrest itself may make sense as applied to
physical items, but any extension of that reasoning to digital data
has to rest on its own bottom.143
Accordingly, we simply cannot agree that the search of an unlocked backpack
that was part of an arrestee’s person at the time of arrest constitutes such a
substantial invasion beyond the arrest itself that a warrant is required to
search it. On that front, it is important to highlight that, contrary to the
dissent’s assertion that, “based on the Majority rule, any container, regardless
of . . . whether it is locked” may be searched incident to arrest is not at issue in
the case now before us. While we agree that in accordance with Chadwick, the
fact that a container is locked may result in a heightened privacy interest, the
container at issue in this case was not locked. In addition, the fact that the
footlocker in Chadwick was locked was only part of the Supreme Court’s basis
for invalidating the search. The Court’s primary holding was that “warrantless
searches of luggage or other property seized at the time of an arrest cannot be
justified as incident to that arrest either if the ‘search is remote in time or
place from the arrest[.]’”144 Whereas the search of Bembury’s backpack
occurred immediately after, and in the same location as, his arrest. Additional
consideration must also be given to the fact that, in this case, Bembury was
143 Id. at 392-93 (emphasis added).
144 Chadwick, 433 U.S. at 15 (emphasis added).
36
pulling illegal items out of his backpack in a public place and in the plain view
of the officers.
Based on the foregoing discussion, we conclude that a container capable
of carrying items, such as a backpack, can be considered part of an arrestee’s
“person” for the purposes of a search incident to lawful arrest. And, until the
U.S. Supreme Court speaks on the matter, the time of arrest rule is a well-
reasoned and common-sense way to determine whether such a container is
considered part of an arrestee’s person and therefore subject to being searched.
Accordingly, we hold that to be considered part of an arrestee’s person, a
container must be in the arrestee's actual and exclusive possession, as
opposed to constructive possession, at or immediately preceding the time of
arrest such that the item must necessarily accompany the arrestee into
custody.
In accordance with this standard, we hold that the Bembury’s backpack
was part of his person at the time of his arrest. Although we assume that
Bembury was carrying his backpack when the officers initially spotted him, the
trial court’s fact findings are silent in that regard. However, the trial court’s
findings do state that the officers “observed Napier hand [Bembury] U.S.
Currency in an unknown amount, which [Bembury] placed inside his
backpack. Officer Ray then observed [Bembury remove] a white paper from his
backpack, sprinkle a substance inside it, roll it up and hand it to Napier.” Like
the arrestee in Mercier, Bembury’s actions in putting items into and taking
items out of the backpack established his actual and exclusive, rather than
37
constructive, possession of it. There was no suggestion that the backpack
belonged to anyone other than Bembury, and it was still with him when Officer
Ray returned to the courtyard to arrest him. Furthermore, as the officers could
not have simply left Bembury’s backpack in the courtyard, it was an item that
necessarily and inevitably would have accompanied him to jail. And of course,
we should not, and cannot, expect officers to either leave behind, or blindly
transport within their vehicles, potentially dangerous or deadly contraband.
The Court of Appeals was therefore incorrect in holding that the search
of Bembury’s backpack was an impermissible search of the area within his
immediate control and in holding that the search was a substantial invasion of
privacy rather than a minor additional intrusion, and we reverse. But, to
clarify, although we hereby reinstate the circuit court’s order denying
Bembury’s motion to suppress we do so for different reasons.145 The circuit
court relied upon the Gant rule that allows a vehicle to be searched incident to
arrest without a warrant “if it is reasonable to believe the vehicle contains
evidence of the offense arrest”146 to hold that the search of Bembury’s
backpack was lawful because the officers had such reasonable belief. But that
holding applies exclusively to vehicle searches and not searches of an arrestee’s
person. But, as we have explained, the search was nevertheless lawful because
it was the search of a container that was in Bembury’s actual and exclusive
145 See, e.g., Wells v. Commonwealth, 512 S.W.3d 720, 721–22 (Ky. 2017) (“Even
if a lower court reaches its judgment for the wrong reason, we may affirm a correct
result upon any ground supported by the record.”).
146 Gant, 556 U.S. at 351.
38
possession immediately preceding his arrest which would necessarily have to
accompany him to jail.
Because we hold that the search was a lawful search incident to
Bembury’s arrest, we decline to address the parties’ arguments regarding the
inevitable discovery doctrine.
III. CONCLUSION
For the foregoing reasons, the Court of Appeals decision is hereby
reversed and the Fayette Circuit Court’s order denying Bembury’s motion to
suppress is reinstated.
Bisig, Conley, Keller, Lambert, Nickell and Thompson, JJ.; sitting. Bisig,
Conley, and Nickell, JJ; concur. Nickell, J., concurs by separate opinion.
Keller, J., dissents by separate opinion in which Thompson, J., joins.
Thompson, J., dissents by separate opinion. VanMeter, C.J., not sitting.
NICKELL, J., CONCURRING. While I fully concur with the majority’s
well-reasoned opinion, I write separately to emphasize my position that
Bembury’s use of his backpack as a public dispensary for synthetic marijuana
obviated the requirement for a search warrant under the plain view exception.
“The Fourth Amendment protects legitimate expectations of privacy
rather than simply places.” Illinois v. Andreas, 463 U.S. 765, 771 (1983).
“What a person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection.” Florida v. Riley, 488
U.S. 445, 449 (1989) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)).
39
Similarly, in Arkansas v. Sanders, 442 U.S. 753, 764 n. 13 (1979), the
Supreme Court explained:
Not all containers and packages found by police during the course
of a search will deserve the full protection of the Fourth
Amendment. Thus, some containers (for example a kit of burglar
tools or a gun case) by their very nature cannot support any
reasonable expectation of privacy because their contents can be
inferred from their outward appearance. Similarly, in some cases
the contents of a package will be open to “plain view,” thereby
obviating the need for a warrant.
“The plain view doctrine is grounded on the proposition that once police are
lawfully in a position to observe an item first-hand, its owner’s privacy interest
in that item is lost; the owner may retain the incidents of title and possession
but not privacy.” Andreas, 442 U.S. at 771. In other words, “courts will allow
a search of a container following its plain view seizure only ‘where the contents
of a seized container are a foregone conclusion.’” United States v. Williams, 41
F.3d 192, 197 (4th Cir. 1994). To determine “whether the contents of a
container are a foregone conclusion, the circumstances under which an officer
finds the container may add to the apparent nature of its contents.” Id.The rationale of the Andreas and Williams decisions applies equally to
the present appeal. After the officers observed Bembury complete the drug
transaction in full public view such that the officers were justified in effecting
his immediate arrest, it was a foregone conclusion that the backpack used to
facilitate the transaction contained the fruits of the same illegal activity. This
unambiguous knowledge was based on the officers’ first-hand,
contemporaneous observations as opposed to mere suspicion or subjective
40
belief. Thus, the present situation is distinguishable from those where police
merely happen upon a closed container during the course of a lawful arrest or
search. Accordingly, this Court should not countenance Bembury’s assertion
of a legitimate expectation of privacy where, as the majority noted, he “was
pulling illegal items out of his backpack in a public place and in the plain view
of the officers.”
Inasmuch as reasonableness is the touchstone for any Fourth
Amendment analysis, “[w]hen all else is said and done, common sense must
not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment
Ins. Comm’n, 450 S.W.2d 235, 237 (Ky. 1970). “[R]equiring police to obtain a
warrant once they have obtained a first-hand perception of contraband, stolen
property or incriminating evidence generally would be a ‘needless
inconvenience,’ . . . that might involve danger to the police and public.” Texas
v. Brown, 460 U.S. 730, 739 (1983). In the present appeal, upon witnessing
the public perpetration of a crime, the officers were justified to search and seize
the instrumentality of the offense without a warrant. Therefore, I concur with
the majority and would further hold that Bembury waived any legitimate
expectation of privacy by opening the illegal contents of his backpack to public
view.
KELLER, J., DISSENTING: I agree with much of the Majority’s well-
written Opinion. I disagree with the Majority, however, on a critical point: what
constitutes personal property “immediately associated with the person” of the
arrestee. As the Majority notes, this is a question that the Supreme Court of
41
the United States has yet to answer but that we are directly confronted with
today. Federal circuit courts of appeals as well as state courts that have
addressed this issue are split. We now have, not only an opportunity, but an
obligation to weigh in on this important issue. In doing so, we are reminded
that “the right of privacy [is] one of the unique values of our civilization” and
must be protected as such. McDonald v. United States, 335 U.S. 451, 453
(1948).
To make this determination, I believe that we must undertake the
balancing test described in Riley v. California, 573 U.S. 373, 385 (2014)
(quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). On the one hand, we
must weigh the governmental interests at stake, as informed by the
justifications for the search incident to arrest exception to the warrant
requirement as described in Chimel v. California, 395 U.S. 752, 762–63 (1969).
On the other hand, we must weigh the individual’s privacy interests. I believe
that in the situation before us, the individual’s privacy interest outweighs the
governmental interest in searching personal property without a warrant.
Relying on decisions from several other state courts, the Majority,
however, sets forth the following rule: “[T]o be considered part of an arrestee’s
person, a container must be in the arrestee’s actual and exclusive possession .
. . at or immediately preceding the time of arrest such that the item must
necessarily accompany the arrestee into custody.” As State v. Mercier explains,
“[p]ut 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
42
to search.” 883 N.W.2d 478, 491 (N.D. 2016) (quoting State v. Brock, 355 P.3d
1118, 1123 (Wash. 2015)). The Mercier court justified extending the search of
an arrestee’s person to the items that will go to jail with him by explaining,
It would be illogical to require police officers to leave the backpack
on the public street without checking it, posing a threat to the
public and the possibility of its being stolen. Similarly, it would be
illogical for the officers to take it with them to the correctional
center or police station without checking it, posing a threat to
themselves, the arrestee, and the public.
Id. at 492–93.
At first glance, this reasoning appears sound; however, upon closer
inspection, it falls apart. This rule and its corresponding justification provide
absolutely no limit to the types of items police can search as an extension of an
arrestee’s person. The Majority seems to admit as much. The only safeguard is
that the item must be something that is in the arrestee’s possession and that
the police will not leave at the site of the arrest. I do not see why the 200-
pound, double-locked footlocker at issue in United States v. Chadwick would
not fall within this rule, had police stopped the arrestees before they reached
the car in which they placed the footlocker. 433 U.S. 1 (1977), abrogated on
other grounds by California v. Acevedo, 500 U.S. 565 (1991). The footlocker was
in the possession of the arrestees, and police would not have left it in the
middle of a train station parking lot. Thus, it would have been subject to
search under the Majority’s rule as an extension of the person of the arrestees
despite the clear “manifest[ation of] an expectation that the contents would
remain free from public examination.” Id. at 11. Even though “one who
43
safeguards his personal possessions in this manner is due the protection of the
Fourth Amendment Warrant clause” “[n]o less than one who locks the doors of
his home against intruders,” a double-locked footlocker would be subject to a
warrantless search if it was in the arrestee’s actual possession at or
immediately preceding his arrest. Id. This cannot be what the United States
Supreme Court intended when it set forth the search incident to arrest
exception to the warrant requirement.
The state courts cited by the Majority, as well as the Majority itself in this
case, all fail to undertake the balancing test as required by Riley v. California,
573 U.S. at 385. Under that test, we must weigh “‘on the one hand, the degree
to which [a search] intrudes upon an individual’s privacy and, on the other, the
degree to which it is needed for the promotion of legitimate governmental
interests.’” Id. (quoting Houghton, 526 U.S. at 300). For the reasons set forth
below, I believe that a weighing of these interests results in the necessity of
obtaining a warrant in a case such as the one at bar. I further note, as will be
more fully addressed below, that the existence of probable cause to search
an item does not eliminate the warrant requirement.
I believe that to answer the critical question of what is personal property
immediately associated with the person, we must look to the original
justifications underlying the search of a person incident to his or her arrest.
The Supreme Court of the United States explained,
When an arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapons that
the latter might seek to use in order to resist arrest or effect his
escape. Otherwise, the officer’s safety might well be endangered,
44
and the arrest itself frustrated. In addition, it is entirely reasonable
for the arresting officer to search for and seize any evidence on the
arrestee’s person in order to prevent its concealment or
destruction.
Chimel, 395 U.S. at 762–63. Thus, “[t]he rule allowing contemporaneous
searches is justified . . . by the need to seize weapons and other things which
might be used to assault an officer or effect an escape, as well as by the need to
prevent the destruction of evidence of the crime.” Id. at 764 (quoting Preston v.
United States, 376 U.S. 364, 367 (1964)). More recently, the Supreme Court
has acknowledged that “[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.” Arizona v. Gant, 556 U.S. 332, 339 (2009) (citation omitted).
In evaluating how these justifications apply, I am cognizant of the fact
that the United States Supreme Court has rejected a case-by-case evaluation of
the application of the search of the person incident to his arrest exception to
the warrant requirement in favor of a categorical approach. That Court has
explained,
The authority to search the person incident to a lawful custodial
arrest, while based upon the need to disarm and to discover
evidence, 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. A
custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion
being lawful, a search incident to the arrest requires no additional
justification. It is the fact of the lawful arrest which establishes the
authority to search, and we hold that in the case of a lawful
custodial arrest a full search of the person is not only an exception
to the warrant requirement of the Fourth Amendment, but is also a
‘reasonable’ search under that Amendment.
45
United States v. Robinson, 414 U.S. 218, 235 (1973). Thus, the lawfulness of a
search incident to arrest of the person of the arrestee does not depend on the
reasonableness of a particular search under particular circumstances but
instead depends on whether the category of thing to be searched (such as the
clothes the arrestee is wearing or the backpack he is carrying) is exempt from
the warrant requirement.
With this in mind, I must determine whether these justifications apply to
a backpack (or, based on the Majority rule, any container, regardless of size,
weight, or whether it is locked) that is in the actual possession of an arrestee at
the time of, or immediately preceding, his arrest. After a thorough review of the
law, I do not believe they do. I believe that to apply “the search incident to
arrest doctrine to this particular category of effects would ‘untether the rule
from the justifications underlying the Chimel exception.’” Riley, 573 U.S. at
386–87 (quoting Gant, 556 U.S. at 343).
In order to determine whether Chimel’s justifications for a search
incident to arrest apply to a backpack and thus exempt a search of the
backpack from the warrant requirement, we must undertake the balancing test
required by Riley. 573 U.S. 373. In doing so, we weigh “‘on the one hand, the
degree to which [the search] intrudes upon an individual’s privacy and, on the
other, the degree to which it is needed for the promotion of legitimate
governmental interests.’” Id. at 385 (quoting Houghton, 526 U.S. at 300). “On
the government interest side, Robinson concluded that the two risks identified
46
in Chimel—harm to officers and destruction of evidence—are present in all
custodial arrests.” Id. at 386. With this premise, I agree. However, Robinson
also quoted with approval then-Judge Cardozo’s account of the
historical basis for the search incident to arrest exception: “Search
of the person becomes lawful when grounds for arrest and
accusation have been discovered, and the law is in the act of
subjecting the body of the accused to its physical dominion.”
Id. at 391–92 (emphasis added) (quoting Robinson, 414 U.S. at 232 (quoting
People v. Chiagles, 142 N.E. 583, 584 (N.Y. 1923))).
The gravity of the governmental interests at stake in a search incident to
arrest is tied closely to the height of the risks of harm to officers and
destruction of evidence which justify the exception to the warrant requirement.
Integral to my opinion that a backpack is not an item immediately associated
with the person of an arrestee is the fact that a backpack can easily be
separated from the person of the arrestee without degradation in a way that
clothing cannot. As the Tenth Circuit Court of Appeals explained, “Because of
an arrestee’s ability to always access weapons concealed in her clothing or
pockets, an officer must necessarily search those areas because it would be
impractical (not to mention demeaning) to separate the arrestee from her
clothing.” United States v. Knapp, 917 F.3d 1161, 1166–67 (10th Cir. 2019)
(citing United States v. Edwards, 415 U.S. 800, 803 (1974)). Conversely, once a
backpack is separated from the person of the arrestee, “there is no longer any
danger that the arrestee might gain access to the property to seize a weapon or
destroy evidence.” Chadwick, 433 U.S. at 15. Thus, the justifications of the
47
search incident to arrest exception to the warrant requirement no longer apply,
and the governmental interests at stake are low.
On the individual privacy side of the equation lies the fact that “any
privacy interests retained by an individual after arrest [are] significantly
diminished by the fact of the arrest itself.” Riley, 573 U.S. at 386. However,
“[t]he fact that an arrestee has diminished privacy interests does not mean that
the Fourth Amendment falls out of the picture entirely . . . . [W]hen ‘privacy-
related concerns are weighty enough’ a ‘search may require a warrant,
notwithstanding the diminished expectations of privacy of the arrestee.’” Id. at
392 (quoting Maryland v. King, 569 U.S. 435, 463 (2013)).
I assert that the privacy interests are much higher in the contents of a
backpack than they are in the contents of the pockets of an arrestee’s clothing
when he is taken into custody. Like the contents of luggage, the contents of a
backpack “are not open to public view,” and backpacks are “intended as a
repository of personal effects.” Chadwick, 433 U.S. at 13. People carry all kinds
of personal items in their backpacks of which they do not intend the public to
have knowledge and to which they do not intend the public to have access.
These items could include things as personal as journals containing a person’s
innermost convictions, medications indicating one’s physical health history or
even mental health diagnoses, hygiene products, or checkbooks and other
financial records evincing one’s political, religious, and other personal
affiliations. The possibilities are limitless, because, under the Majority’s rule,
the size or type of container does not matter. By placing items in an opaque,
48
zipped-up backpack, individuals have a reasonable expectation that those
items will remain private.
After weighing the governmental interest against an individual’s privacy
interest, it is clear to me that the individual’s privacy interest is more
significant. Additionally, as the United States Supreme Court held in
Chadwick, “[W]hen no exigency is shown to support the need for an immediate
search, the Warrant Clause places the line at the point where the property to
be searched comes under the exclusive dominion of police authority.” Id. at 15.
As the Tenth Circuit concluded, “[A] holding to the contrary would erode the
distinction between the arrestee’s person and the area within her immediate
control.” Knapp, 917 F.3d at 1167. Therefore, I would hold that a backpack is
not personal property immediately associated with the person of the arrestee
such that police could search it without a warrant. Accordingly, I would affirm
the Court of Appeals.
The police in this case could have and should have obtained a warrant to
search Bembury’s backpack. They certainly had probable cause to do so, but
the existence of probable cause does not eliminate the warrant requirement.
We must remember “that the warrant requirement is ‘an important working
part of our machinery of government,’ not merely ‘an inconvenience to be
somehow “weighed” against the claims of police efficiency.’” Riley, 573 U.S. at
401 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971)). As the
Supreme Court explained in Johnson v. United States,
49
The point of the Fourth Amendment . . . is not that it denies law
enforcement the support of the usual inferences which reasonable
men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate
instead of being judged by the officer engaged in the often
competitive enterprise of ferreting out crime . . . . When the right of
privacy must reasonably yield to the right of search is, as a rule, to
be decided by a judicial officer, not by a policeman or Government
enforcement agent.
333 U.S. 10, 13–14 (1948) (emphasis added) (footnote omitted).
I note that if the police had reason to believe an exigency existed that
justified an immediate, warrantless search of the backpack, they could have
conducted such a search. However, whether an exigency exists must be
determined on a case-by-case basis and not through a categorical exception to
the warrant requirement. See Riley, 573 U.S. at 388 (“To the extent dangers to
arresting officers may be implicated in a particular way in a particular case,
they are better addressed through consideration of case-specific exceptions to
the warrant requirement, such as the one for exigent circumstances.” (citation
omitted)). In this case, the Commonwealth did not argue that any exigency
existed to justify the warrantless search of Bembury’s backpack, and there was
no testimony regarding any exigency.
Finally, I note that it is more likely than not that Bembury’s backpack
would have been searched and the content inventoried upon his booking into
the local jail. During this search, the evidence at issue would have been
discovered, implicating the inevitable discovery exception to the exclusionary
rule. However, this record is completely void of any of the aforementioned
50
testimony, and therefore, I cannot hold that the evidence would have been
inevitably discovered.
Thompson, J., joins.
Thompson, J., DISSENTING. I respectfully dissent from the majority’s
wholesale repeal of all reasonable limits on warrantless baggage searches
incident to arrest and urge a return to the standards elucidated in Chimel v.
California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 2d. 685 (1969), and Arizona
v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 1719, 173 L. Ed. 2d 485 (2009), which
prohibit searches of containers that are no longer accessible to arrestees.
Bembury was arrested for the sale of a $5.00 cigarette which officers
could only assume contained synthetic marijuana. After he was arrested,
handcuffed, and placed in the back of a police car, officers searched his
backpack and found a small quantity of what they again suspected was
synthetic marijuana, some cigarette rolling papers, a total of seven one-dollar
bills, and his life’s possessions. Bembury entered a plea of guilty to a charge of
possession of synthetic drugs, second offense, and received a sentence of two
years and one day – all for a five-dollar transaction.
The warrantless search of Bembury’s backpack constituted an unlawful
search under the Fourth Amendment of the United States Constitution and
Section Ten of Kentucky’s Constitution. The majority’s opinion is a clear
departure not only from precedent but from the tide of jurisprudence which
seeks to ensure the same rights from intrusive government action for the
impoverished as it does the wealthy who are more financially able to secure
51
their personal effects. A warrant could have, and should have, been acquired
prior this search.
The Fourth Amendment guarantees “[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. Its “ultimate touchstone . . . is
‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943,
164 L.Ed.2d 650 (2006). “In the absence of a warrant, a search is reasonable
only if it falls within a specific exception to the warrant requirement.” Riley v.
California, 573 U.S. 373, 381–82, 134 S. Ct. 2473, 2482, 189 L. Ed. 2d 430(2014).
All citizens clearly have an interest in the privacy of the contents of their
luggage, briefcases, handbags or any other containers that conceal private
papers and effects from public scrutiny. The majority opinion upholds the
search of Bembury’s backpack as reasonable as part of his search incident to
arrest. The United States Supreme Court has clearly set forth the limits of the
search-incident-to-arrest exception, emphasizing that it is “reasonable” for
arresting officers to search the person being arrested and only the area within
his reach (1) “in order to remove any weapons that the [arrestee] might seek to
use in order to resist arrest or effect his escape” and (2) “in order to prevent
[the] concealment or destruction” of evidence. Chimel, 395 U.S. at 763, 89 S.Ct.
at 2040. The Court also concluded the area “within [arrestee’s] immediate
control,” only meant the area from within which he might gain possession of a
weapon or destructible evidence.” Id. at 763.
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In Gant, 556 U.S. at 343, 129 S. Ct. at 1719, the United States Supreme
Court upheld the continued importance of Chimel prohibiting any search
incident to arrest of an area beyond the arrestee’s immediate control, holding
that “the Chimel rationale authorizes police to search a vehicle incident to a
recent occupant’s arrest only when the arrestee is unsecured and within
reaching distance of the passenger compartment at the time of the search.”147
In United States v. Davis, 997 F.3d 191, 198 (4th Cir. 2021), the Fourth
Circuit had to decide whether a backpack was properly searched incident to
arrest. Davis had fled from police on foot while carrying his backpack but
dropped it just before he lay down and surrendered. His backpack was not
searched until he was already under arrest, handcuffed with his hands behind
his back, and lying on his stomach. The Court ruled that the warrantless
search of the backpack was not justified as a search incident-to-arrest under
the Fourth Amendment because the arrestee could not access his backpack at
the time of the search. Davis, 997 F.3d at 197-98.
Similarly, in United States v. Knapp, 917 F.3d 1161 (10th Cir. 2019), the
Court determined that a search of a purse carried by arrestee at time of her
arrest does not qualify as search of the arrestee’s person incident-to-arrest for
147 Gant contains a second holding for which it is more commonly cited, that
“circumstances unique to the vehicle context justify a search incident to a lawful
arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might
be found in the vehicle.’” 556 U.S. at 343, 129 S. Ct. at 1719 (quoting Thornton v.
United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 2137, 158 L.Ed.2d 905 (2004)
(Scalia, J., concurring in judgment)).
53
Fourth Amendment purposes since, being under arrest and restrained, the
purse was no longer in “an area within her immediate control,” stating that,
“[t]o the extent the government suggests a construction that includes more
than the arrestee’s immediate person, worn clothing, or containers concealed
within her clothing, we decline to adopt it.” Id. at 1167.
I agree with the reasoning in Davis and Knapp as being an accurate
interpretation of what our Constitution requires. Once separated from his
backpack by the officers, I cannot agree with the legal fiction that the backpack
remained a part of Bembury’s “person” subject to search without a warrant.
Without the justification of a search incident to arrest, there is no
acceptable basis for searching Bembury’s backpack. At the time of the search,
Bembury had been arrested, handcuffed and was in custody in the back of a
police car. Any exigency had vanished by that time. Further, no contraband
was in plain sight; all subsequently discovered evidence being secured inside
the backpack. Here, Bembury’s backpack could certainly be seized incident to
arrest but not searched, without a warrant.
While this discussion would apply to all citizens equally, I am especially
cognizant that there are some people who, as a result of circumstances, are
compelled to carry all their physical belongings along with them and the
conveyances in which they transport such items are indeed “repositories of
personal effects.”148 Such persons do not have the luxury of fences, doors, and
148 The record is not entirely clear as to whether Bembury was homeless or
simply had limited means.
54
locks found in traditional residences wherein they can secure their possessions
and are dependent upon suitcases, backpacks, grocery carts and even garbage
bags to secure their personalty. For these citizens, such possessions may
contain all “the privacies of life” which for another citizen might be stored in a
house. Riley, 573 U.S. at 403, 134 S. Ct. at 2494-95 (quoting Boyd v. United
States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886)). Our protections
against warrantless searches are not supposed to end at the doorstep of a
home. I assert that our most vulnerable are the most deserving of protection
from unconstitutional intrusion.
Accordingly, I would affirm the Court of Appeals’ determination that the
warrantless search of Bembury’s backpack was impermissible and the evidence
obtained therefrom should have been suppressed.
COUNSEL FOR APPELLANT:
Daniel J. Cameron
Attorney General of Kentucky
Mathew Robert Krygiel
Assistant Attorney General
Lou Anna Red Corn
Assistant Commonwealth Attorney
COUNSEL FOR APPELLEE:
Aaron Reed Baker
Assistant Public Advocate
Department of Public Advocacy
Kathleen Kallaher Schmidt
Assistant Public Advocate
Department of Public Advocacy
55