At issue in State vs. Byrd is whether a police officer violated federal and state privacy rights by searching a defendant’s purse incident to arrest after the defendant was secured in a police car and the purse was left on the ground outside the vehicle.  The Washington Supreme Court determined that the search did not violate either the United States or Washington Constitutions because the purse was part of the defendant’s person and therefore subject to warrantless search incident to a lawful arrest.

Four justices dissented, arguing the search violated state constitutional protections.  Justice Gonzales concurred with the majority, but wrote separately to suggest the search was invalid because the officer lacked probable cause to make the arrest itself.

Background

On November 17, 2009.  Lisa Byrd was a passenger in a vehicle affixed with stolen license plates.  A Yakima Police Officer pulled the vehicle over and arrested the driver while Byrd remained in the car.  As he was restrained on the ground, the driver claimed Byrd owned the car.  The officer then returned to the car, where Byrd sat in the front passenger seat with her purse in her lap.  The officer took the purse, placed it on the ground outside the car, then arrested Byrd and secured her in his patrol car.  The officer then returned to the purse and searched it, whereupon he discovered methamphetamine inside a sunglass case in the purse.

The trial court suppressed the evidence because it was found in an illegal search and the Court of Appeals affirmed the ruling.

Analysis

The Supreme Court (Stephens, J.)  noted that both the Fourth Amendment of the U.S. Constitution and Article I, section 7 of the Washington Constitution protect individuals from unreasonable searches and seizures and the Washington provision “is more protective of individual privacy than the Fourth Amendment.”  Nevertheless, the Court found the police officer’s search of Byrd’s purse as a valid search incident to arrest for which no warrant was needed.

The Court determined that under both the federal and state Constitutions, searches incident to arrest produced two separate exceptions to the warrant requirement: 1) a ‘grab area’ search allowing officers to search an area under the arrestee’s control to ensure the arrestee does not access a weapon or destroy evidence and 2) a search of the arrestee’s person which “flows from the authority of the custodial arrest itself.”  The Court read the United States Supreme Court’s Arizona v. Gant decision as limited to the first prong and restricting only searches of grab areas within a car after the occupant has been detained, without speaking to searches of the detainee’s person.  While the grab area exception is subject to case-by-case adjudication, warrantless searches of the arrestee’s person are per se reasonable.

The Court then found that personal effects “immediately associated” with a person are considered part of the person, not part of the surroundings.  Searches of these personal effects are therefore inherently reasonable under the second prong.  Next the Court reasoned that purses in a lap are personal effects immediately associated with the person.  Therefore, the Court held that such purses are subject to personal search incident to arrest even after the arrestee is separated from the purse.  The police officer’s power to conduct a warrantless search of the purse was therefore not limited by the fact that Byrd was secured in the police car away from the purse.  The trial court erred in suppressing evidence gained through this lawful search.

Concurrence:         Though Justice Gonzalez signed the majority opinion and concurred with the holding regarding searches incident to lawful arrest, Justice Gonzales wrote separately to direct the trial court’s attention to whether the arrest itself was lawful on remand.  Justice Gonzalez expressed doubt that a highly self-interested and self-exculpatory statement by the driver was enough to provide the police officer probable cause to arrest Byrd.

Dissent:           Justice Fairhurst wrote a dissent on behalf of four Justices disagreeing with the majority solely on state constitutional grounds.  The dissent notes that Article I, section 7 differs from the Fourth Amendment in explicitly guarding against invasions of privacy.  The dissent argued that searches of a detainee’s person, the majority’s second prong, were only allowed under Washington law to prevent destruction of evidence or accessing a weapon.  Because Byrd could do neither with a purse on the ground while she was secured, the dissent would have affirmed suppression of the fruits of the illegal search of the purse.

Commentary

The Court labored mightily – and ultimately unpersuasively – to distinguish its reasoning from the United States Supreme Court’s decision in Gant v. Arizona that a warrantless search of car’s interior is only reasonable when the detained person could actually be in a position to grab items from the car.  The Gant opinion rejected the “fiction that the interior of the car is always within the immediate control of an arrestee” to find that allowing warrantless “vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment.”  In this decision, the Washington Court pursued the logical and legal fallacy that the Supreme Court sought to end in Gant.  Not only did the Court embrace the fiction that a purse is always part of a detainee’s person even when separated by a locked door and many feet, it created a police entitlement to evade Gant and search an item resting on a person’s lap when no search would be allowed of an item on the floor.

The decision raises a number of unanswered questions: What other personal effects are so immediately associated with a person to be subject to this exception?   If an item is a personal effect, is a search incident to arrest always reasonable if the item is merely close to the person or must the person be holding it?  Specifically in the context of a car, are items in the front seat area always personal items searchable after the arrestee is detained?   What length of time between arrest and searching an item left behind makes the warrantless search unreasonable?

To the extent this heavily federal issue is preserved through further state proceedings, direct or collateral federal review would be helpful in clarifying whether Gant is limited to grab area searches and if so, whether a purse left on the ground is still part of an arrestee’s person.