WPI 342.05 Unreasonable Search—Exceptions to Warrant Requirement—Search Incident to Lawful Arre.

A search is reasonable, and a search warrant is not required, if the search is incident to a lawful arrest. [The court has decided in a pre-trial legal ruling that the arrest in this case was lawful.]

An arresting officer may search the person arrested and the immediate area within which that person might gain possession of a weapon or might destroy or hide evidence. This search must be contemporaneous with the arrest.

Use this instruction for a claim of an unreasonable search under the Fourth Amendment when the issues involve a search incident to arrest.

Use this instruction with WPI 342.04 (Unreasonable Search—Burden of Proof on the Issues) and WPI 340.01 (Claims Instruction for Section 1983 Cases).

This instruction is not intended to be a complete statement of the law for all cases. Additional instructions as to the permissible scope of the search may well be needed based on the particular facts of the case. If the judge has not made a legal ruling that the arrest was lawful, the judge will need to craft an instruction that sets forth the permissible scope of the search incident to lawful arrest and that allows the jury to address material questions of fact. See the Comment below concerning the scope of search incident to arrest and the evolving court opinions in this area.

The Ninth Circuit instruction on general searches incident to arrest is Ninth Circuit Civil Model Jury Instruction 9.13 (2007). The Ninth Circuit has approved a separate instruction for searches of vehicles incident to the arrest of a recent occupant. 9th Cir. Civ. Jury Instr. 9.14 (2007).

Use of instruction. Because the instruction is not a complete statement of the law for all factual contexts, additional instructions often will be required to inform jurors about the permissible scope of the search. These instructions will vary depending on the area being searched. For cases involving vehicle searches, additional instructions can be drafted based on Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1716, 173 L.Ed.2d 485 (2009), and related opinions. For building searches, additional instructions can be drafted based on State v. Hopkins, 113 Wn.App. 954, 55 P.3d 691 (2002), and related opinions. The law as to the permissible scope of a search continues to evolve; practitioners are encouraged to review the most recent appellate opinions.

The Supreme Court has clarified that police officers are not allowed to search the inside of a vehicle under the search incident to arrest rule, if the person is arrested in a vehicle, and is immobilized so that he or she cannot gain access to weapons or evidence of the specific crime for which the arrest is made; or if the person being arrested in the vehicle is removed or escapes from the vehicle and goes to a place where he or she cannot gain access to the vehicle to obtain weapons or evidence of the specific crime for which the arrest is made. Under the Fourth Amendment, officers may search the car either if the arrestee is not secured or if they have a reasonable belief that evidence of the offense of arrest may be found in the vehicle. Arizona v. Gant, 556 U.S. 332, 351, 129 S.Ct. 1716, 173 L.Ed.2d 485 (2009); see also State v. Robinson, 171 Wn.2d 292, 301, 253 P.3d 84 (2011) (quoting Gant).

Pre-Gant case law concerning search incident to arrest must be re-evaluated in light of the new rule established in Gant. Because much of Washington case law regarding vehicle searches relies on article I, section 7 of the Washington Constitution, particular care must be taken when relying on Washington state cases. State v. Valdez, 167 Wn.2d 761, 224 P.3d 751 (2009).

Area searched. When a lawful arrest is made, it is reasonable for a police officer to search the person arrested and the area “within [the arrestee's] immediate control,” i.e., “the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Arizona v. Gant, 556 U.S. 332, 351, 129 S.Ct. 1716, 1723–24, 173 L.Ed.2d 485 (2009).

Unlawful arrest. If the arrest was unlawful or invalid, then the search incident to arrest is invalid. State v. Hehman, 90 Wn.2d 45, 50, 578 P.2d 527 (1978). In Hehman, the Washington Supreme Court held that a custodial arrest is not permissible, under Washington law, for minor traffic offenses as long as the defendant signs the promise to appear under RCW 46.64.015. The United States Supreme Court, however, held in Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008), that even if state law forbids a custodial arrest for certain types of offenses, an arrest that is invalid under state rules may still be found reasonable and lawful under the Fourth Amendment in a Section 1983 lawsuit. Warrantless arrests for misdemeanors committed in the presence of an arresting officer are reasonable under the Fourth Amendment. Virginia v. Moore, 553 U.S. 164; see also Whren v. United States, 517 U.S. 806, 815, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

A search is not reasonable under the exception if it is conducted after law enforcement officers have determined that the person will not be detained. State v. Carner, 28 Wn.App. 439, 444–45, 624 P.2d 204 (1981).

Misdemeanors. For misdemeanor crimes in general, the Washington Supreme Court has also held that the Fourth Amendment does not require that a misdemeanor be committed “in the presence” of a police officer in order to justify a custodial arrest. State v. Walker, 157 Wn.2d 307, 319–22, 138 P.3d 113 (2006). If, however, a suspect passively fails to provide information, or fails to provide identification, the suspect's failure to do so does not justify a custodial arrest for obstructing an officer. Staats v. Brown, 139 Wn.2d 757, 764–71, 991 P.2d 615 (2000); see also WPI 120.02 (Obstructing a Law Enforcement Officer—Elements); but see Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008).

“Within the control.” An object is considered to be “within the control of” the arrestee if the object was within the arrestee's reach immediately prior to, or at the moment of, the arrest. State v. Smith, 119 Wn.2d 675, 681–82, 835 P.2d 1025 (1992). Under the exception for searches incident to arrest, officers may conduct a “protective sweep” of the premises where the arrest was made, if the search is based on specific facts that support a reasonable belief that the area swept may harbor an individual who poses danger to the officers or others. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); State v. Hopkins, 113 Wn.App. 954, 959, 55 P.3d 691 (2002) .

Personal property searchable incident to arrest. Searches incident to arrest may extend to items immediately associated with the arrestee at the time of arrest. See State v. Brock, 184 Wn.2d 148, 159, 355 P.3d 1118 (2015) (search of backpack reasonable where arrestee had been wearing backpack at time of initial stop prior to arrest); State v. MacDicken, 179 Wn.2d 936, 938, 319 P.3d 31 (2014) (search of arrestee's bags reasonable where arrestee was carrying the laptop bag and pushing the rolling duffel bag at time of arrest); State v. Byrd, 178 Wn.2d 611, 621, 310 P.3d 793 (2013) (search of arrestee's purse reasonable where she was holding purse on her lap at time of arrest).

Cell phones carry heightened privacy concerns for individuals in terms of both the quantity and quality of private information they contain. See Riley v. California, 573 U.S. 373, 393–96, 124 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (noting that cell phones have vast storage capacity that typically contains sensitive personal information). Police may not automatically search the contents of a cell phone carried by or associated with an individual at the time of arrest, whether the cell phone is a smart phone or a standard cell phone. Riley v. California, 134 S.Ct. at 2492–93.

Breath tests to measure blood alcohol content, but not blood tests, are constitutionally permissible as searches incident to arrest. Birchfield v. North Dakota, U.S. , 136 S.Ct. 2160, 2184, 195 L.Ed.2d 560 (2016); accord State v. Baird, 187 Wn.2d 210, 386 P.3d 239 (2016).

Search must be contemporaneous. A search may be considered “incident to arrest” even if it occurs shortly before the arrest, as long as there is probable cause to arrest at the time of the search. State v. Harrell, 83 Wn.App. 393, 400, 923 P.2d 698 (1996). In order to qualify for the exception, a search conducted after the arrest must be essentially contemporaneous; a significant delay between the arrest and the search renders the search unreasonable. See State v. Smith, 119 Wn.2d at 679, 683 (holding that a delay of 9 to 17 minutes is not unreasonable); United States v. Vasey, 834 F.2d 782, 786 (9th Cir. 1987) (holding that a delay of 30 to 45 minutes is unreasonable).

Causation. For discussions of causation, see the Comments to WPI 340.02 (Civil Rights—Individual Defendant—Burden of Proof on the Issues), WPI 340.04 (Civil Rights—“Subjects” and “Causes to be Subjected”—Definition), and WPI 340.06 (Causation—Comment Only) for a discussion of causation.