State v. MacDicken , 179 Wash. 2d 936 ( 2014 )

Owens, J.

¶1 When Abraham MacDicken was arrested on suspicion of armed robbery, he was carrying a laptop bag and pushing a rolling duffel bag. The arresting officers moved the bags a car’s length away and searched them. MacDicken claims this search violated his rights under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. But as this court recently held, officers may search an arrestee’s person and articles closely associated with his or her person at the time of arrest without violating either of those constitutional provisions. State v. Byrd, 178 Wn.2d 611, 625, 310 P.3d 793 (2013). Applying that rule here, we hold that the bags carried by MacDicken were closely associated with him at the time of arrest and thus subject to search without a warrant.

FACTS

¶2 In her room at a Lynnwood hotel, Krystal Steig was robbed at gunpoint. The robber took various items, including a laptop and a cell phone, and put them in a suitcase belonging to Steig’s roommate, Thomas Brinkly. As the robber was leaving, he walked past Brinkly in the hotel stairwell. Brinkly recognized his suitcase and confronted the robber, who pulled out a gun and pointed it at him. Brinkly quickly exited the stairwell. Brinkly and Steig called the police to report the robbery and later identified MacDicken from still photos taken from the hotel’s video surveillance camera.

¶3 The following morning, police tracked the stolen cell phone to a hotel in Edmonds. An officer saw MacDicken leaving the Edmonds hotel and recognized him as the man Steig and Brinkly had identified as the assailant. MacDicken had two bags in his possession when the officer saw him: a laptop bag, which he carried, and a rolling duffle bag, which he was pushing. Officers ordered MacDicken to the ground and handcuffed him. As MacDicken, still handcuffed, was standing up next to a patrol car speaking with another officer, an officer moved a car’s length away the bags that MacDicken had been carrying and began to search them without obtaining a warrant. Inside the laptop bag, police found a handgun, Steig’s laptop, a letter addressed to Steig, and other items.¹ After being asked, MacDicken told police he had stolen the laptop bag from Steig but denied robbing her with a gun. MacDicken claimed at a later hearing that he in fact told police that the laptop bag was his, but the trial court found that testimony not credible.

¶4 MacDicken was charged with two counts of first degree robbery (with a firearm enhancement) and one count of unlawful possession of a firearm in the first degree. He moved to suppress the evidence from the bags, arguing that the search violated his rights under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. The trial court denied MacDicken’s motion. As part of that ruling, the court concluded that MacDicken did not have standing to challenge the search of the laptop bag because it was stolen but acknowledged that under the automatic standing rule, MacDicken had automatic standing to challenge the search as it related to the unlawful possession of a firearm charge. The trial court then found that the search was a valid search incident to arrest. After a trial, the jury found MacDicken guilty on all three counts. MacDicken appealed, and the Court of Appeals affirmed, reasoning that because the bags were within his reach at the time of the search, the warrantless search was valid as incident to his lawful arrest. State v. MacDicken, 171 Wn. App. 169, 176, 286 P.3d 413 (2012). This court granted MacDicken’s subsequent petition for review. State v. MacDicken, 177 Wn.2d 1004, 300 P.3d 416 (2013).

ISSUE

¶5 Was the warrantless search of the bags carried by MacDicken at the time of his arrest a valid search incident to a lawful arrest?

ANALYSIS

¶6 MacDicken claims that the warrantless search of his bags violates his rights under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. When a party alleges violations of both of those provisions, we analyze the Washington State Constitution first because it is more protective of individual privacy. State v. Walker, 157 Wn.2d 307, 313, 138 P.3d 113 (2006). Article I, section 7 provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const. art. I, § 7. Warrantless searches violate this provision unless they fall under one of “a few jealously guarded exceptions.” State v. Afana, 169 Wn.2d 169, 176-77, 233 P.3d 879 (2010). One of those exceptions covers searches incident to lawful arrest. United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973).

¶7 There are two types of warrantless searches that may be made incident to a lawful arrest: a search of the arrestee’s person and a search of the area within the arrestee’s immediate control. Id.; Byrd, 178 Wn.2d at 616-17. This court recently examined the historical development of these two types of searches incident to arrest and the reasons why courts treat them differently. A warrantless search of the arrestee’s person is considered a reasonable search as part of the arrest of the person. Robinson, 414 U.S. at 225-26. Such a search presumes exigencies and is justified as part of the arrest; therefore it is not necessary to determine whether there are officer safety or evidence preservation concerns in that particular situation. Byrd, 178 Wn.2d at 618. In contrast, a warrantless search of the arrestee’s surroundings is allowed only if the area is within an arrestee’s “ ‘immediate control.’ ” Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), overruled in part by Arizona v. Gant, 556 U.S. 332,129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Such searches are justified by concerns of officer safety or the preservation of evidence and are limited to those areas within reaching distance at the time of the search. Gant, 556 U.S. at 351.

¶8 In this case, the parties argued over whether the search of bags that were a car’s length away was justified by concerns of officer safety or preservation of evidence. But as described below, we hold that the search of the bags carried by MacDicken at the time of his arrest constituted a search of his person. Therefore, we do not analyze whether the search was a valid search of the area within MacDicken’s immediate control under Chimel and Gant.

¶9 Instead, we look to Byrd, a recent case in which this court upheld the search of an arrestee’s purse that she was holding at the time that she was arrested. Byrd, 178 Wn.2d at 623-24. The court held that a valid search of an arrestee’s person included the articles of an arrestee’s person, such as her clothing and the purse that was in her possession at the time of arrest. Id. at 623. Such a search extends “only to articles ‘in such immediate physical relation to the one arrested as to be in a fair sense a projection of his person.’ ” Id. (quoting United States v. Rabinowitz, 339 U.S. 56, 78, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J., dissenting)). The court defined articles immediately associated with the arrestee’s person as “personal articles in the arrestee’s actual and exclusive possession at or immediately preceding the time of arrest.” Id. The court cautioned that such a search does not include “articles within the arrestee’s reach but not actually in his possession.” Id. The court also noted that a significant delay between the arrest and the search could render the search unreasonable. Id. at 623-24.

¶10 Here, the laptop bag and the rolling duffel bag were in MacDicken’s actual and exclusive possession at the time of his arrest. Therefore, applying the rule from Byrd, we conclude that the bags were immediately associated with his person. Because there was no significant delay between the arrest and the search that would render the search unreasonable, we hold that the search of the bags was a part of the lawful search of MacDicken’s person pursuant to his arrest. A warrant is not needed for a search of an arrestee’s person, and thus this search was a valid search incident to arrest under both the federal and state constitutions.²

CONCLUSION

¶11 Both the United States Constitution and the Washington State Constitution provide protection against warrantless searches, but certain limited searches are allowed incident to a lawful arrest. This includes a search of the person being arrested. In Byrd, this court held that a search of the arrestee’s person includes a search of the articles that the arrestee has actual possession of at the time of arrest. Here, MacDicken had a laptop bag and a rolling duffel bag in his possession when he was arrested; the police lawfully searched those bags as part of the search of his person pursuant to his arrest. We affirm the Court of Appeals, albeit for different reasoning.

Madsen, C.J., and C. Johnson, J.M. Johnson, Stephens, Wiggins, and González, JJ., concur.

1 From the record, it does not appear that any significant pieces of evidence were recovered from the rolling duffle bag.

2 In the answer to the petition for review, the State requested that if the court found the search to be invalid, it consider whether there was an alternate basis to uphold the trial court’s order: that MacDicken lacked standing to challenge the search as to the robbery charge. Because we hold that the search was a valid search incident to arrest, we do not reach this issue.