State v. Brock

• Decision Date: 03 September 2015
• Docket Number: No. 90751–0.,90751–0.
• Citation: 355 P.3d 1118,184 Wash.2d 148
• Parties: STATE of Washington, Petitioner, v. Antoine Lamont BROCK, Respondent.
• Court: Washington Supreme Court

184 Wash.2d 148

355 P.3d 1118

STATE of Washington, Petitioner

v.Antoine Lamont BROCK, Respondent.

No. 90751–0.

Supreme Court of Washington.

Argued May 14, 2015.

Decided Sept. 3, 2015.

James Morrissey Whisman, King County Prosecutor's Office, Mafe Rajul, Attorney at Law, Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Seattle, WA, for Petitioner.

Nielsen Broman Koch PLLC, Attorney at Law, Christopher Gibson, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent.

Opinion

JOHNSON, J.

¶ 1 This case involves whether under Washington State Constitution article I, section 7, an officer may search an arrestee's backpack as a search incident to arrest when the arrestee was wearing the backpack at the moment that he was stopped by police, but not at the time he was arrested several minutes later. When Officer Erik Olson stopped and seized Antoine Brock, he had Brock remove the backpack he was wearing and placed it where Brock could not readily access it. After a period of questioning, the officer arrested Brock and then searched the backpack. As long as 10 minutes may have lapsed between the time Olson separated Brock from his backpack and the arrest. The trial court denied Brock's motion to suppress the evidence taken from the backpack. The Court of Appeals reversed. State v. Brock, 182 Wash.App. 680, 330 P.3d 236 (2014), review granted, 181 Wash.2d 1029, 340 P.3d 228 (2015). Under the facts of this case, we hold that the backpack was a part of Brock's person at the time of arrest and reverse the Court of Appeals, upholding the search as a valid search incident to arrest.

Facts

¶ 2 Early in the morning, at approximately 3 a.m. on May 21, 2008, Officer Olson was patrolling Golden Gardens Park when he noticed the men's restroom door was open and the lights were on. The park was closed and had been since 11:30 p.m. As he approached the men's room, the officer could see a person's legs inside the stall. Officer Olson waited approximately 10 minutes before Brock emerged, wearing baggy clothing and carrying a backpack.

¶ 3 Olson identified himself as an officer and informed Brock that he was not allowed in the park. Although Olson had probable cause to arrest Brock for trespass at that moment, he did not. Instead, he had Brock remove his backpack and performed a Terry¹ stop and frisk. Olson did not feel a wallet during the frisk. Brock explained that he did not have any identification but provided Olson with a name, Dorien Halley, and a corresponding birthdate and Social Security number.

¶ 4 Olson directed Brock to follow him to his patrol truck so he could run his name through the Washington database.

For safety purposes, Olson carried the backpack and placed it on the passenger seat of his vehicle while Brock stood 12 to 15 feet away on the curb. Olson reminded Brock he was not under arrest at that time but that he was also not yet free to go.

¶ 5 Brock indicated that he had a California license instead of a Washington license, so Olson ran the name through both the Washington and California databases. Neither search yielded any results. At that point, Olson read Brock his Miranda² rights and arrested Brock for providing false information but explained to Brock that “he wasn't necessarily going to jail.” Verbatim Report of Proceedings (June 13, 2011) at 56. Because Brock had been cooperative, Olson did not use handcuffs and instructed Brock just to remain near the curb while he returned to his truck to search the backpack for identification. Olson considered the backpack search “a search of Brock's person incident to arrest” for providing false information.

¶ 6 In searching the backpack, Olson discovered a wallet containing two small “baggies” of what appeared to be marijuana and methamphetamine. He also found a Department of Corrections (DOC) inmate identification card displaying Brock's photograph and identifying him as Antoine L. Brock. Olson walked back over to Brock, handcuffed him, and put him in the back of his patrol truck. Olson estimated that the entire encounter, from the time of the initial contact to the time he handcuffed Brock, was about 10 minutes.

¶ 7 Olson then ran Brock's real name through the database and discovered that Brock had a DOC felony arrest warrant. Once Washington State Patrol confirmed the warrant, Olson had no choice but to take Brock to jail. Before doing so, Olson emptied the contents of the backpack in what he considered an inventory search prior to taking Brock to jail for booking. Olson explained that for safety reasons, he could not bring the backpack to the jail without first performing a search of the arrestee's personal effects for weapons or explosives. In his search, Olson discovered numerous checks, credit cards, mail, and more baggies possibly containing narcotics.

¶ 8 Based on this evidence, the State charged Brock with 10 counts of identity theft in the second degree, 3 counts of forgery, and violation of the Uniform Controlled Substances Act, chapter 69.50 RCW. Brock moved to suppress the evidence discovered in his backpack, which the trial court denied, concluding that the search was a valid search incident to arrest. Brock agreed to a stipulated facts bench trial and was found guilty on all counts except on one count of identity theft.

¶ 9 Brock appealed, challenging the trial court's suppression ruling under article I, section 7 of the Washington State Constitution. The State responded that the search was a valid search of Brock's person.³ The Court of Appeals reversed Brock's conviction, agreeing with Brock that it was not a valid search of his person under article I, section 7 because Brock did not have actual, exclusive possession of the backpack “immediately preceding” arrest. Brock, 182 Wash.App. at 689, 330 P.3d 236.

Analysis

¶ 10 Article I, section 7 of the Washington State Constitution provides for broad privacy protections for individuals and generally prohibits unreasonable police invasions into personal affairs. We presume that a warrantless search of an individual's personal item, such as a backpack, violates these protections unless the search falls within “one of the few ‘carefully drawn and jealously guarded exceptions.’ ”

State v. Byrd, 178 Wash.2d 611, 616, 310 P.3d 793 (2013) (quoting State v. Bravo Ortega, 177 Wash.2d 116, 122, 297 P.3d 57 (2013) ). One such exception is a search incident to arrest, in which the arresting officer has authority to search the arrestee's person and his or her personal effects.

¶ 11 There are two discrete types of searches incident to arrest: (1) a search of the arrestee's person (including those personal effects immediately associated with his or her person—such as purses, backpacks, or even luggage) and (2) a search of the area within the arrestee's immediate control. A valid search of the latter requires a justification grounded in either officer safety or evidence preservation—there must be some articulable concern that the arrestee can access the item in order to draw a weapon or destroy evidence. Byrd, 178 Wash.2d at 617, 310 P.3d 793 (citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ). The former search does not; in analyzing the search of an arrestee, we utilize the United States Supreme Court's rationale from Fourth Amendment that “ ‘a search may be made of the person of the arrestee by virtue of the lawful arrest.’ ” Byrd, 178 Wash.2d at 617, 310 P.3d 793 (quoting United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ). In such cases, we presume that safety and evidence justifications exist when taking those personal items into custody as part of the arrestee's person.

¶ 12 The distinction as to whether a particular personal item constitutes part of the arrestee's person, as opposed to just part of the surrounding area, turns on whether the arrestee had “actual and exclusive possession at or immediately preceding the time of arrest.” Byrd, 178 Wash.2d at 623, 310 P.3d 793. This is known as the “time of arrest” rule. We have previously applied this rule in cases involving an arrestee who was holding the personal item at the precise moment of arrest. But here, because Brock was separated from his backpack several minutes prior to arrest, the issue involves the scope of “immediately preceding arrest.”

¶ 13 In Byrd, we analyzed this “time of arrest” distinction between items that are part of the arrestee's “person” and items merely within the arrestee's immediate control. Byrd involved the validity of a warrantless search of a car passenger's purse. At the time of arrest, Byrd held the purse in her lap, but when ordered to step out of the car, she asked to leave the purse in the car. The officers refused and seized her purse as part of the arrest. The purse was removed and searched separate from her person. We recognized that her physical distance from the bag dispelled any practical concerns that she could have reached the purse to draw a weapon or destroy evidence, but we upheld the search as a search of her “person.” Unlike items in the immediately surrounding area, the officer does not need to articulate any objective safety or evidence preservation concerns before validly searching the item. We said that the officer's authority to search the purse flowed “from the authority of [the] custodial arrest itself.” Byrd, 178 Wash.2d at 618, 310 P.3d 793 (citing Robinson, 414 U.S. at 232, 94 S.Ct. 467 ). This authority satisfies article I, section 7's requirement that the incursions into private affairs be supported by “ ‘authority of law.’ ” Byrd, 178 Wash.2d at 618, 310 P.3d 793. The arrest provides the constitutional authority of law justifying the search.

¶ 14 A second underlying justification for this “part of the person” distinction is that there are presumptive safety and evidence preservation concerns associated with police taking custody of those personal items immediately associated with the arrestee, which will necessarily travel with the arrestee...