Opinion
NO. PD-0722-19
09-23-2020
Braden Daniel PRICE, Appellant v. The STATE of Texas
Paul Cho, Lauren Scott, Richmond, for State. Ronald Guyer, San Antonio, Lauren Scott, Richmond, for Appellant.
Paul Cho, Lauren Scott, Richmond, for State.
Ronald Guyer, San Antonio, Lauren Scott, Richmond, for Appellant.
OPINION
Yeary, J., announced the judgment of the Court and delivered an opinion in which Keasler, Keel, and Slaughter, JJ., joined. Police approached Appellant at the airport in San Antonio, detained him on suspicion of trafficking in drugs, and handcuffed him behind his back. They then transported both him and his rolling suitcases to a "secure office" inside the airport. After reading Appellant his rights, police searched the suitcases and discovered marijuana.
Appellant argued on appeal that the trial court should have granted his motion to suppress the marijuana because the officers’ search of the suitcases was impermissible under the Fourth Amendment. The court of appeals reversed, holding that the warrantless search was not justified as a search incident to arrest. Price v. State , No. 14-18-00628-CR, 2019 WL 2013849, (Tex. App.—San Antonio del. May 8, 2019) (mem. op., not designated for publication). We granted the State's petition for discretionary review to examine its claim that the court of appeals erred when it concluded that the search was not a valid search incident to arrest because, as a categorical matter, luggage is never "property immediately associated with the arrestee." We will reverse.
FACTS AND PROCEDURAL POSTURE
Appellant pled guilty to the offense of possession of marijuana in an amount greater than fifty but less than two hundred pounds, a second-degree felony. TEX. HEALTH & SAFETY CODE § 481.121(a) & (b)(5). The trial court assessed a sentence of ten years in the penitentiary and a fine of $1,500, but placed Appellant on community supervision for a period of ten years. The trial court then certified Appellant's right to appeal the pretrial denial of his motion to suppress.
The facts as developed at the hearing on the motion to suppress are undisputed. Only one witness testified, Detective Carl Bishop of the San Antonio Police Department. Bishop received a tip from an Austin police officer that a reliable informant had indicated Appellant would be flying into the San Antonio airport on January 29, 2017, with a quantity of marijuana he had purchased from out of state. Bishop verified that Appellant was on an in-coming flight, and a drug dog alerted to the presence of contraband in suitcases bearing labels with Appellant's name. Bishop and at least two other detectives then watched as Appellant, whom Bishop recognized from a photograph, retrieved the suitcases from the baggage claim area and rolled them out to the curb. There, the detectives detained Appellant, seized the suitcases from him, handcuffed him behind his back, and transported him along with the suitcases to a secure office, where Bishop read him his Miranda rights. By this time, Bishop acknowledged, Appellant was under arrest. One of the other detectives then opened the suitcases, revealing a large quantity of marijuana in vacuum-sealed bags. The events from the time the police detained Appellant at the curb to the search of the suitcases in the secure office were captured on video by the body cam of a uniformed officer at the scene, and the video was admitted into evidence and played at the motion-to-suppress hearing. In reversing the trial court's denial of Appellant's motion to suppress, the court of appeals reasoned:
[O]ur analysis in this case turns on whether the rolling suitcases were "immediately associated" with [Appellant] at the time of his arrest. If they were not, the videotape of the events that transpired between the time [Appellant] was handcuffed and the searching of his suitcases established that the suitcases were reduced to the officers' "exclusive control, and there [was] no longer any danger that [Appellant] might gain access to the [suitcases] to seize a weapon or destroy evidence." Chadwick , 433 U.S. at 15 . Accordingly, unless the suitcases were "immediately associated" with [Appellant], their search would not be justified under the search-incident-to-arrest exception to the warrant requirement.
Price , 2019 WL 2013849 at *2. Concluding—seemingly categorically—that suitcases are not among the types of receptacle that have been held to be "immediately associated with" the arrestee, the court of appeals held that the warrantless search of the suitcases was not authorized as a search incident to Appellant's arrest. Id.
The court of appeals next addressed whether the trial court's denial of Appellant's motion to suppress might have been correct for a different reason. Id. (citing this Court's opinion in State v. Cortez , 543 S.W.3d 198, 203 (Tex. Crim. App. 2018), for the proposition that an appellate court should uphold a trial court's ruling on a motion to suppress if that court's "decision is correct under any applicable theory of law"). The court noted that, in Lalande v. State , 676 S.W.2d 115, 118 (Tex. Crim. App. 1984), this Court held that, once it becomes "unequivocally clear" that an arrestee would be taken to the police station, where the right of the police to conduct an inventory search of his property would accrue, a search of the property would be permissible; and that, moreover, such a search would not be "limited to inspections carried out within the station itself." Price , 2019 WL 2013849 at *2. The court of appeals observed that, because it was clear in this case that Appellant's suitcases would accompany him into custody, "under the reasoning of Lalande , the search [in the secure office at the airport] would be permissible." Id.
Even so, the court of appeals declined to apply Lalande to uphold the search of the suitcases because it perceived a conflict with this Court's later opinion in State v. Daugherty , 931 S.W.2d 268 (Tex. Crim. App. 1996). Price , 2019 WL 2013849 at *2. In Daugherty , this Court held that Article 38.23 of the Texas Code of Criminal Procedure, our statutory exclusionary rule, does not embrace the inevitable discovery doctrine. Id. at 273 ; TEX. CODE CRIM. PROC. art. 38.23. The court of appeals perceived Lalande to involve an application of inevitable discovery, in contradiction of the Court's later rejection of that doctrine in Daugherty . Price , 2019 WL 2013849 at *2.
In its petition for discretionary review, the State raises two grounds. First, the State argues that the court of appeals misapplied Chadwick by categorically excluding luggage from the universe of receptacles that may be searched incident to arrest. Second, it argues that the court of appeals erred to believe that Lalande and Daugherty are irreconcilable. In the State's view, the holding in Lalande renders the search in the secure office constitutionally permissible in the first instance, and Lalande does not stand for the proposition that the search is justified because of the inevitable discovery doctrine. In the State's view, therefore, the two cases are not in tension. We granted review of both grounds. ANALYSIS
Searches Incident to Arrest
"[T]he ultimate touchstone of the Fourth Amendment is reasonableness." Riley v. California , 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). Under the United States Supreme Court's Fourth Amendment jurisprudence, warrantless searches for evidence of criminal wrongdoing are generally regarded as unreasonable, subject to notable exceptions including, as relevant here, searches incident to arrest. Id. As the Supreme Court observed in United States v. Robinson , 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the search-incident-to-arrest exception
has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.
Id. at 224, 94 S.Ct. 467. The first type of search identified by Robinson has been deemed "unqualified": that is to say, the dual justifications that underlie the search-incident-to-arrest exception to the warrant requirement—the need to assure officer safety by securing weapons, and the need to protect evidence from concealment or destruction—are deemed to apply to any search of the person of the arrestee, without any need for a particularized showing that weapons or evidence are likely to be found. Id. at 235, 94 S.Ct. 467. Thus, the Supreme Court was able to say in United States v. Chadwick , 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), with respect to the first type of search incident to arrest: "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." Id. at 14–15, 97 S.Ct. 2476. Searches of the person, or of property within the immediate control of the person—property "immediately associated with the person of the arrestee," id. at 15, 97 S.Ct. 2476 —are always justified under the search incident to arrest exception to the warrant requirement, upon no more justification than the arrest itself. Robinson , 414 U.S. at 235, 94 S.Ct. 467.
As the Supreme Court explained in Robinson :
A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. 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.
414 U.S. at 235, 94 S.Ct. 467.
But with respect to the second type of search incident to arrest that Robinson identified—a search, not of the arrestee's person or of items "immediately associated" with his person, but of the broader area where the arrest occurred—it may be necessary for the State to establish that the arresting officer had reason to believe the arrestee could possibly gain access to a weapon or evidence before the Fourth Amendment permits a warrantless search. As the Supreme Court observed in Chadwick :
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 the property is no longer an incident of the arrest.
433 U.S. at 15, 97 S.Ct. 2476 (emphasis added). More recently, the Supreme Court reiterated this point in the context of a search incident to the arrest of a motorist. Arizona v. Gant , 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Speaking not of a search of the person of the motorist, or of some property "immediately associated" with his person, but of a search of the location from which he had emerged immediately before the arrest occurred—specifically, the interior of the motorist's car—the Supreme Court declared: "If 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." Id. at 339, 129 S.Ct. 1710. As this Court observed in State v. Granville , 423 S.W.3d 399, 413 & n.54 (Tex. Crim. App. 2014), some courts have applied Gant ’s principle beyond the context of a search incident to arrest of an automobile interior.
Granville cited United States v. Shakir , 616 F.3d 315, 318 (3d Cir. 2010) (search of defendant's gym bag), and United States v. Perdoma , 621 F.3d 745, 750–52 (8th Cir. 2010) (search of a small bag the defendant carried with him into a bus terminal). See also State v. Carrawell , 481 S.W.3d 833, 839 (Mo. 2016) (Gant ’s holding applies "to all searches incident to arrest, vehicle or not").
The Issue on Appeal and Discretionary Review
Appellant essentially argued on appeal that the search of his suitcases was a search incident to arrest of the second kind identified by Robinson : a search of the area in which the arrest occurred, not of his person or some container immediately associated with his person. That being the case, he contended, the fact that he had been separated from his suitcases, handcuffed behind his back, and placed into the custody of multiple police officers in a secure office, means that the warrantless search of his suitcases was unjustified, consistent with the holdings in Chadwick and Gant . The State, on the other hand, argued that the search of Appellant's suitcases constituted a search of his person, or at least of a receptacle that was immediately associated with his person at the time of his arrest, and that, under Robinson, such a search requires no particularized showing of a likelihood that Appellant could obtain a weapon or destroy evidence.
In resolving this dispute, the court of appeals consulted case law from this Court that itself has seemed to take a categorical approach to deciding which types of receptacles are "immediately associated with" the person of the arrestee, and which are not. In Stewart v. State , 611 S.W.2d 434 (Tex. Crim. App. 1981), the appellant challenged the lawfulness of a police search of the purse she was carrying at the time of her arrest. Confronted with the question whether such a receptacle fell within the Robinson type of search or the Chadwick type of search, this Court took the position that "the search of the purse [was] better characterized as a search of items immediately associated with the person of the appellant." Id. at 438. Thus, her "purse [was] among those personal effects which, under Robinson , may be seized and searched as part of a full search of her person incident to the lawful arrest[.]" Id. Along the way, however, the Court recognized cases from other jurisdictions which had held that the search of other kinds of receptacles, such as attaché cases, guitar cases, backpacks, and duffel bags, do not fall within Robinson ’s "immediately-associated-with-the-person" orbit, suggesting that such searches incident to arrest would have to be justified under the rationale of Chadwick . Id. at 437. Following this lead, the court of appeals in this case agreed with Appellant that Chadwick controlled, and reversed the trial court's ruling on Appellant's motion to suppress because there was no showing that Appellant could have accessed the suitcases. Price , 2019 WL 2013849 at *2.
See also Jones v. State , 640 S.W.2d 918, 921 (Tex. Crim. App. 1982) (treating a search of the defendant's briefcase as a Robinson -type of search of the person, under Stewart , because he had it in his hand when arrested); Snyder v. State , 629 S.W.2d 930, 934 (Tex. Crim. App. 1982) (search of the wallet found in the defendant's pocket was permissible because that is one of the receptacles Stewart identifies as an extension of the defendant's person).
The court of appeals also relied upon the recent opinion of the Second Court of Appeals in State v. Drury , 560 S.W.3d 752 (Tex. App.—Fort Worth 2018, pet. ref'd), for its categorical approach. Price , 2019 WL 2013849, at *2. In Drury , the appellant had been holding a tin can, but he dropped it to the floor as he was being arrested. Id. at 754. Citing Stewart ’s categorical approach to the determination of whether a receptacle is "immediately associated with the person," and recognizing that some kinds, including luggage and guitar cases, have not been deemed to fit within that category, the court of appeals held that the tin can was immediately associated with the appellant's person, so that its search was justified even though the appellant had been immediately handcuffed upon arrest. Id. at 755–56.
Searches of Receptacles Immediately Associated with the Person
The State insists that the court of appeals erred when it held that a suitcase is necessarily excluded from the category of receptacles that may be regarded as "immediately associated with the person" of an arrestee. We agree. This Court's opinion in Stewart did not explicitly endorse the view that suitcases and luggage should never be regarded as "immediately associated with the person" of an arrestee; in fact, we later included at least one kind of personal receptacle—a briefcase—among those we deemed to be immediately associated with the defendant's person, even though Stewart had listed "attaché case" as among the receptacles that other jurisdictions had held to be subject to a Chadwick analysis. Jones v. State , 640 S.W.2d 918, 921 (Tex. Crim. App. 1982). Chadwick itself dealt with the search of a 200-pound footlocker, which was much less portable than an ordinary suitcase.
As the United States Supreme Court has noted, the Framers of our nation's constitution would have found the search of "luggage" incident to arrest to be quite unremarkable, and perhaps even routine. Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 2175, 195 L.Ed.2d 560 (2016). In the course of describing Robinson ’s search of the person of an arrestee incident to arrest, the Supreme Court in Birchfield noted:
One 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).
Id. Partly on the strength of this observation, the highest courts of several states have recently held that the search of a suitcase in an arrestee's possession at the time of his arrest constitutes a Robinson search of property immediately associated with his person, requiring no greater justification than the arrest itself—at least so long as the police intend to take the arrestee to jail or to the stationhouse for booking.
Three such cases merit comparison to the facts of this case, starting with People v. Cregan , 381 Ill. Dec. 593, 10 N.E.3d 1196 (2014), an opinion of the Illinois Supreme Court. There, police lawfully arrested Cregan as he disembarked from a train, handcuffed him, and then took the two bags he had "carried" from the train (described as a laundry bag and a "wheeled luggage bag") to the side of the train station, where they searched them. Id., 381 Ill. Dec. at 595–96, 10 N.E.3d at 1198–99. Cregan argued that this was not a valid search incident to arrest because, by the time the search was conducted, he was handcuffed and surrounded by police officers, so that he could not reasonably have gained access to the bags. Id., 381 Ill. Dec. at 596, 10 N.E.3d at 1199. The Court disagreed, holding that, because Cregan was in "actual possession" of the bags when he was arrested, they were immediately associated with his person, and the search was therefore of the first type described in Robinson , requiring no justification beyond the fact of the lawful arrest. Id., 381 Ill. Dec. at 606, 10 N.E.3d at 1209. In the course of its analysis, the Court declared: "Defining ‘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 the arrest results is an unworkable rule and produces unpredictable results." Id., 381 Ill. Dec. at 602, 10 N.E.3d at 1205.
State v. MacDicken , 179 Wash.2d 936, 319 P.3d 31 (2014), from the Washington Supreme Court, is another case with similar facts to those we address here. Police arrested MacDicken leaving a hotel room with a rolling duffel bag, which he was pushing. Id., 179 Wash.2d at 939, 319 P.3d at 32. They immediately ordered him to the ground and handcuffed him behind his back. Id. His duffel bag was moved about a car's length away (by which time MacDicken was standing up but still handcuffed) and searched. Id. The Court rejected MacDicken's challenge to the search, which relied on Gant . Id., 179 Wash.2d at 941, 319 P.3d at 33. It held that, because MacDicken had the "rolling duffel bag in his possession when he was arrested[,] the police lawfully searched [it] as part of the search of his person pursuant to his arrest." Id., 179 Wash.2d at 942–43, 319 P.3d at 34. "A warrant is not needed for a search of an arrestee's person," the Court concluded, "and thus this search was a valid search incident to arrest under both the federal and state constitutions." Id., 179 Wash.2d at 942, 319 P.3d at 34.
An even more recent opinion that merits comparison is from the North Dakota Supreme Court. In State v. Mercier , 883 N.W.2d 478 (N.D. 2016), Mercier's backpack was searched following his detention, handcuffing, and formal arrest. He was then placed in a squad car. Id. at 482. Relying upon Gant , he argued that the search was not valid because he could not have accessed the backpack by the time the police searched it. Id. at 487. The Court rejected Mercier's argument. It observed that, even since Gant was decided, the United States Supreme Court has continued to recognize Robinson ’s holding that searches of the person require no greater justification than a lawful arrest. Id. at 489–90 (citing Maryland v. King , 569 U.S. 435, 133 S. Ct. 1958, 1970–71, 186 L.Ed.2d 1 (2013) ). The Court alluded several times to the United States Supreme Court's observation in Birchfield , quoted above, that the Framers would have regarded a search of luggage incident to arrest to be commonplace. Id. at 487–88, 492. Ultimately, the Court adopted the possession-at-the-time-of-arrest standard from the Washington and Illinois courts for determining whether a receptacle was "immediately associated with the person." Id. at 490. It explained:
The fact that the backpack sat on the ground for a number of minutes after Mercier ... was formally arrested had little effect on his relationship to the backpack. It was still an item in Mercier's possession immediately preceding his arrest and would have to go with him to jail when he was brought into custody. 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. 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.
Id. at 492–93. Because the backpack was in Mercier's "actual possession immediately preceding his lawful arrest," and because it "invariably must be transported along with him" to the police station, the Court found the warrantless search of his backpack to be a reasonable search of Mercier's person incident to his arrest. Id. at 493.
Lalande v. State
In 1984, this Court adopted a rule that is very like the North Dakota Supreme Court's holding in Mercier . In Lalande v. State , the appellant was detained at an airport and frisked for weapons. 676 S.W.2d at 116. When officers discovered that he was carrying an illegal knife, they arrested him and searched an "airline bag claimed by" him. Id. Lalande argued that the ensuing search of his airline bag could not be justified as a search incident to arrest because it was actually his companion who had been carrying it at the time of the arrest, not him, and so "it cannot be said to be so connected with [him] as to admit of a search incident to [his] arrest." Id. at 118. We rejected this argument, holding that, "where—as in the instant case—the detainee asserts an ownership interest in the item leaving no alternative to its accompanying him into custody, ... once it becomes unequivocally clear that the item is to accompany the detainee, the right of inspection accrues immediately, and is not limited to inspections carried out within the station itself." Id.
In Appellant's case, although there was no specific testimony at the suppression hearing that his suitcases would accompany him into custody, it is simply inconceivable under the circumstances that they would not. The police already had probable cause by virtue of the informant's tip, as confirmed by the canine alert, that the rolling suitcases contained contraband. They had been taken into custody along with Appellant and moved to the secure office where Appellant was read his Miranda warnings. There can be no question that they would have accompanied Appellant and the officers to the police station. Under the rationale of Lalande , the officers were entitled to search the suitcases as a search of his person incident to arrest—if for no other reason than that they unquestionably belonged to him and would inevitably accompany him into custody, where a protective search would take place in any event.
The court of appeals acknowledged our holding in Lalande but refused to apply it to the facts of this case. Price , 2019 WL 2013849, at *2–3. It believed that to apply Lalande to uphold the search here would constitute an application of the inevitable discovery doctrine, contrary to this Court's rejection of that doctrine (at least as a matter of Texas's statutory exclusionary rule) in State v. Daugherty , 931 S.W.2d 268, 273 (Tex. Crim. App. 1996), decided a dozen years after Lalande . We agree with the State, however, that the court of appeals’ reluctance to apply Lalande was based upon a misapprehension of our holding in that case.
In Daugherty , we observed that the inevitable discovery doctrine assumes that an illegal search has already occurred. Id. at 270 & 271. From that point, the inevitable discovery doctrine asks whether the exclusionary rule renders inadmissible the product of that search when the same evidence would have come to light by lawful means at some point later in time in any event. Id. at 271. Under Lalande , however, there is no illegality in the initial search; officers may conduct a search, contemporaneously with the arrest, of any receptacle in the possession of the arrestee which must inevitably accompany him to the police station. There is no need to invoke the concept of inevitable discovery to insulate the product of such a search from the application of the exclusionary rule, because the search was constitutionally reasonable to begin with. We perceive no conflict with Daugherty .
CONCLUSION
We hold that, 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. Accordingly, we reverse the judgment of the court of appeals.
Richardson, J., concurred in the result. Keller, P.J., filed a dissenting opinion.
Newell, J., filed a dissenting opinion in which Hervey, J., joined.
Walker, J., filed a dissenting opinion.
Keller, P.J., filed a dissenting opinion.
The court of appeals, the Court's opinion, and one of the dissenting opinions have misunderstood the nature of our holding in Lalande v. State , though in different ways. The holding in Lalande had nothing to do with the inevitable-discovery doctrine or the search-incident-to-arrest doctrine. Rather, Lalande was based on the inventory-search doctrine and on the proposition that the Fourth Amendment permitted the police to do on the scene what they were authorized to do at the station. Accordingly, the search of Appellant's suitcase might have been valid as a legal accelerated inventory search. In Lalande , the defendant complained that the search of his bag could not be a valid search incident to arrest because his companion was carrying the bag. We concluded that Judge Clinton, in a concurring opinion in Stewart v. State , anticipated the problem of determining what is "immediately associated" with an arrestee, and we adopted his solution. This solution was a workaround, relying on an entirely different Fourth Amendment doctrine involving "searches of items accompanying the detainee into confinement." In his concurrence, Judge Clinton unequivocally rejected any application of the search-incident-to-arrest doctrine to the search at issue because it was too remote in time and place from the arrest. Rather, he made clear that his proposed rationale for upholding the search derived from the inventory-search doctrine: "Whatever vestiges of privacy remained would soon be lost through routine property inventory preceding confinement. In this thoroughly different context of a state of detention, the officers were entitled to do some of that which was shortly to be effectuated." Judge Clinton further elaborated that the search of the defendant's purse was authorized "not because it is ‘immediately associated with the person of the arrestee,’ but since it is to accompany the detainee into confinement or be inventoried and held as personal property during confinement." The California Bullwinkle case, cited by both Lalande and Judge Clinton's concurrence in Stewart , held that searches of effects of a prisoner booked into jail were permissible to prevent illicit materials from being introduced to the jail and to safeguard the prisoner's property. The California court further held that the same type of search prior to booking was permissible ("not render[ed] ... illegal") because "no additional or greater intrusion on the privacy of the suspect is involved."
676 S.W.2d 115 (Tex. Crim. App. 1984).
676 S.W.2d 115, 118 (Tex. Crim. App. 1984) (holding that the baggage at issue could be searched incident to arrest even though Appellant claimed it was his companion's bag).
Kyllo v. United States , 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).
Id. at 118.
Id. at 118 ("Appellant also contends the seizure of appellant's bag and contents was unlawful in that, since appellant's companion was carrying the bag, it cannot be said to be so connected with appellant as to admit of a search incident to appellant's arrest.").
Maryland v. Macon , 472 U.S. 463, 469, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) (quoting United States v. Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ).
611 S.W.2d 434 (Tex. Crim. App. 1981).
Id. (adopting rationale justifying a warrantless search set out in Judge Clinton's concurring opinion in Stewart v. State , 611 S.W.2d 434 (Tex. Crim. App. 1981) ); see also Stewart , 611 S.W.2d at 441 (Clinton, J., concurring) (rejecting search-incident-to-arrest theory and arguing that search was permissible because "[w]hatever vestiges of privacy remained would soon be lost through routine property inventory preceding confinement").
Illinois v. Caballes , 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (quoting Jacobsen , 466 U.S. at 123, 104 S.Ct. 1652 ).
Lalande , 676 S.W.2d at 118 (also citing citing People v. Bullwinkle , 105 Cal. App. 3d 82, 164 Cal. Rptr. 163 (1980) ).
There is no "search of items accompanying the detainee into confinement" in Texas. The case Judge Clinton relied upon to set out this rationale in his concurring opinion in Stewart v. State was based upon searches of belongings at the station not at the scene. See Stewart, 611 S.W.2d at 441 (quoting United States v. Edwards , 415 U.S. 800, 804–05, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974) ). Under federal law, it is of no moment whether the search occurs at the scene or at the jail because of the existence of the inevitable discovery doctrine. If the search at the jail is permissible, the search at the scene in anticipation of the item being inventoried at the jail when the arrestee lacks any expectation of privacy is also permissible. See, e.g., United States v. Matthews , 532 Fed. Appx. 211, 225 (3d Cir. 2013) ("We note that, even if we were to find the search of Matthews’ backpack unconstitutional, we agree with the District Court that the evidence in question would have been discovered pursuant to a valid inventory search at the police station when Matthews was processed, and thus it was properly admitted under the inevitable discovery doctrine."). When we decided Lalande , the question of whether the inevitable discovery doctrine applied under Texas law was still an open question. But, after Lalande , we decided State v. Daugherty , 931 S.W.2d 268, 273 (Tex. Crim. App. 1996), which forecloses the application of the inevitable discovery doctrine in Texas. So, under Texas law, it does matter whether the search occurs at the scene or the jail. See Garcia v. State , 829 S.W.2d 796, 798–800 (Tex. Crim. App. 1992) (concluding that the inevitable discovery doctrine "is not an exception to core prohibitions of the Fourth Amendment, but only an exception to the federal exclusionary rule"); Daugherty , 931 S.W.2d at 273 (holding that "Article 38.23 does not contemplate an inevitable discovery exception").
Coolidge v. New Hampshire , 403 U.S. 443, 454–55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ).
Id.
Stewart , 611 S.W.2d at 439-40 (Clinton, J., concurring).
Id. at 441.
Id. (citing Bullwinkle , see supra at n.4).
See supra at nn. 4, 8.
Bullwinkle , 105 Cal. App. 3d at 87, 164 Cal. Rptr. at 166.
Id.
So, Lalande , Judge Clinton's concurrence in Stewart , and the California Bullwinkle case based their rationale on the inventory-search doctrine and held that law enforcement did not have to wait for an item to arrive at the usual inventory place if the item was destined to arrive there. In essence, because an inventory search at the station was inevitable, officers were permitted to conduct the same search at an earlier time. This was not, however, an application of the inevitable-discovery doctrine, where the search is illegal but the fruits are admissible because they would have inevitably been discovered. Instead, the search at issue was held to be legal because "once it becomes unequivocally clear that the item is to accompany the detainee, the right of inspection accrues immediately, and is not limited to inspections carried out within the station itself."
See Nix v. Williams , 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) ("It is clear that the cases implementing the exclusionary rule ‘begin with the premise that the challenged evidence is in some sense the product of illegal governmental activity.’ Of course, this does not end the inquiry. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means—here the volunteers’ search—then the deterrence rationale has so little basis that the evidence should be received.") (citation omitted).
Lalande , 676 S.W.2d at 118.
There is still the question of whether the requirements of the inventory-search doctrine would have been met if a search had been conducted at the station. In order for police to validly search a closed container during an inventory search, the arresting agency must have a policy or established routine authorizing such a search. The court of appeals's statement that "the fact that the suitcases would have been inventoried when they accompanied Price to jail did not authorize their search at the airport office" seems to assume that a valid inventory search would have been conducted, but the court of appeals does not appear to have actually addressed the issue. I would remand the case to the court of appeals to do so.
Florida v. Wells , 495 U.S. 1, 4-5, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) ("In the present case, the Supreme Court of Florida found that the Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during an inventory search. We hold that absent such a policy, the instant search was not sufficiently regulated to satisfy the Fourth Amendment and that the marijuana which was found in the suitcase, therefore, was properly suppressed by the Supreme Court of Florida.").
Price v. State , No. 04-18-00628-CR, 2019 WL 2013849 at *3, 2019 Tex. App. LEXIS 3697 *7 (Tex. App.—San Antonio May 8, 2019) (not designated for publication).
I respectfully dissent.
Newell, J., filed a dissenting opinion in which Hervey J., joined.
Police received a tip that Appellant was trafficking drugs at the airport. A drug-sniffing dog later alerted on Appellant's rolling suitcase. Police detained Appellant after he retrieved his luggage. We held in Lalande v. State that police could lawfully search a suspect's suitcase in a situation very similar to the one presented in this case.1 I agree with the court of appeals that we did so in that case under a theory of inevitable discovery. The question before the Court in Lalande was whether the search in that case was proper incident to arrest.2 We held that the search was justified at the time of arrest because the luggage would have eventually been searched.3 We did not base our decision upon the theory that the search was a legal inventory search; we based it on the theory that discovery during a future inventory search was inevitable. That's inevitable discovery.4 So, the court of appeals was correct that our holding that the statutory exclusionary rule does not incorporate the inevitable discovery doctrine undermined our previous holding in Lalande. If we don't like the conclusion of the court of appeals, we are better off revisiting our interpretation of Article 38.23 as a matter of statutory construction rather than stretching Fourth Amendment precedent to uphold the search under a re-imagining of our holding in Lalande .
Price v. State , No. 14-18-00628-CR, 2019 WL 2013849, at *3 (Tex. App.—San Antonio May 8, 2019) (mem. op. not designated for publication) ("The analysis in Lalande , however, cannot be reconciled with the rejection of the doctrine of inevitable discovery by the Texas Court of Criminal Appeals in State v. Daugherty , 931 S.W.2d 268, 273 (Tex. Crim. App. 1996).").
United States v. Place , 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) ; New Jersey v. T.L.O. , 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) ("[S]earches of closed items of personal luggage are intrusions on protected privacy interests, for ‘the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.’ ") (quoting United States v. Ross , 456 U.S. 798, 822-23, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ).
The difficulty in this case is that the search feels reasonable, but it doesn't squarely fit into a carefully drawn exception to the Fourth Amendment's search warrant requirement. Police had probable cause to arrest Appellant for possession of a controlled substance because they knew he had marijuana in his bag at the airport. Why require police to go through the trouble of getting a search warrant when the probable cause to arrest didn't require a warrant and it is the same probable cause pointing to drugs in the luggage? Allowing the search in this case would certainly be close enough for government work.
See Riley v. California , 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) ("In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.").
Turner v. State , 132 S.W.3d 504, 507 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd).
But, as Judge Walker points out, the United States Supreme Court has reached the opposite conclusion in United States v. Chadwick, albeit when the luggage at issue (a footlocker) was bigger. There, in a situation analogous to the one presented here, the United States Supreme Court held that the search-incident-to-arrest exception does not justify a search of luggage once police have that luggage in their personal control and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence. Perhaps it is enough to liken the luggage at issue in this case to a purse given its mobility. But I believe Chadwick is dispositive, even though the Supreme Court may need to revisit Chadwick in light of some of its more recent holdings.
433 U.S. 1, 12, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).
Kjolhede v. State , 333 S.W.3d 631, 633 (Tex. App.—Dallas 2009, pet. ref'd) ("Random full searches of airline passengers’ luggage help prevent acts of terrorism as well as deter future terroristic acts...."); United States v. Marquez , 410 F.3d 612, 617 (9th Cir. 2005) ("Airport screening procedures are conducted for two primary reasons: first, to prevent passengers from carrying weapons or explosives onto the aircraft; and second, to deter passengers from even attempting to do so."); United States v. Davis , 482 F.2d 893, 908 (9th Cir. 1973) ("[S]creening searches of airline passengers are conducted ... to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings."), overruled on other grounds by United States v. Aukai , 497 F.3d 955, 962 (9th Cir. 2007).
Id. at 15, 97 S.Ct. 2476.
The other exceptions—automobile, plain view, and hot pursuit—definitely do not apply here because the search was not in or of a vehicle, the contraband in the luggage was not in plain view to the officers, and Appellant was not fleeing at the time of the search.
See, e.g., State v. Guzman , 959 S.W.2d 631, 633 (Tex. Crim. App. 1998) ("When we decide cases involving the United States constitution, we are bound by United States Supreme Court case law interpreting it. If Texas case law is in conflict, we are obligated to follow United States Supreme Court federal constitutional precedents.").
McGee v. State , 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (emphasis added); Chimel v. California , 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
Indeed, the Supreme Court has already watered Chadwick down. In United States v. Ross , the Court extended the "automobile exception" to allow for a search of every container within the automobile so long as there was probable cause to search the entire car. Later, in California v. Acevedo , the Court held that police could search a container within a car pursuant to the automobile exception even when officers lacked probable cause to search the entire car. Both cases seem to allow for a warrantless search of "containers" like luggage, at least in a car, so long as there is probable cause to believe that there is contraband to be found. It seems inconsistent to allow a search of bags in a car under this type of rationale while prohibiting a search of a person's bags at the airport. After all, under existing Supreme Court precedent, it would seem police could have searched the luggage in this case if they had waited to pull Appellant over after Appellant put it in the trunk of a car and drove away.
456 U.S. 798, 823, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
Chimel , 395 U.S. at 762–63, 89 S.Ct. 2034.
500 U.S. 565, 574, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).
United States v. Robinson , 414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
Nevertheless, Ross made clear that its holding allowing the search of containers in a car was based upon an extension of the automobile exception rather than an extension of the search-incident-to-arrest exception. Further, the Supreme Court has maintained the distinction between a search pursuant to the automobile exception and a search incident to arrest. It has held, for example, that a warrantless search of a car is unjustified incident to arrest once the car had been secured and there is no danger that the arrestee could gain access to a weapon inside the car or destroy evidence within it. And the Court held that such a search is unjustified as a search-incident-to-arrest even if the search could have been justified under the automobile exception.
Ross , 456 U.S. at 816–17, 102 S.Ct. 2157.
Arizona v. Gant , 556 U.S. 332, 335, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Chimel , 395 U.S. at 763, 89 S.Ct. 2034 ).
Arizona v. Gant , 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).
United States v. Chadwick , 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).
Id. at 347, 129 S.Ct. 1710 (noting that a car may be searched pursuant to the automobile exception even if a search is not justified incident to arrest).
See id. at 3–7, 97 S.Ct. 2476.
Perhaps the United States Supreme Court should recognize that this distinction is problematic. The ability to search a person for evidence of a crime upon a full-custodial arrest is long-standing and well-established. It seems like this justification could be extended to a warrantless search of an arrestee's luggage based upon probable cause, just as the automobile exception was extended to allow for searches of any container in a car. However, that may be inconsistent with the Supreme Court's recent prohibition of warrantless blood draws and searches of cell phones. Continuing to link the propriety of a search incident to arrest to the characteristics of a specific type of "container" is unlikely to provide clear guidance on when a search of someone's personal belongings incident to arrest is permissible. Ultimately, any confusion or inconsistency emanates from the Supreme Court's precedent and it's up to that Court to fix it.
See, e.g., Agnello v. United States , 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925) ("The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted.") (citing Carroll v. United States , 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ).
Id. at 3, 97 S.Ct. 2476.
See Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 2184, 195 L.Ed.2d 560 (2016) (holding that the Fourth Amendment prohibits warrantless blood tests incident to arrest for drunk driving); Riley , 573 U.S. at 403, 134 S.Ct. 2473 ("Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.").
I acknowledge that the search at issue in this case might have been justified as a "present" inventory search rather than as an "inevitable" one, if that was what occurred. But that theory requires proof of an established departmental policy to inventory such property at the airport as well as proof that the policy was followed. The State did not make that argument to the trial court and the record doesn't support it. I would not remand the case for the court of appeals to address an argument that the State isn't even making. I would simply affirm the court of appeals opinion and wait for a case in which the issue is squarely presented. With these thoughts, I respectfully dissent.
See South Dakota v. Opperman , 428 U.S. 364, 369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (explaining that inventory procedures serve three purposes: (1) to protect the owner's property while it is in police custody; (2) to protect the police against claims or disputes over lost or stolen property; and (3) to protect the police or public from potential danger); Vargas v. State , 542 S.W.2d 151, 153–54 (Tex. Crim. App. 1976) (finding the Supreme Court's reasoning and policies for inventory searches stated in South Dakota v. Opperman "fully applicable" to the inventory search in the case); see also Florida v. Wells , 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) ("[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.").
Moberg v. State , 810 S.W.2d 190, 195 (Tex. Crim. App. 1991) (noting that inventory searches must be carried out pursuant to police department policy and that the State must show that an inventory policy existed and that the policy was followed to justify an inventory search); see also Trujillo v. State , 952 S.W.2d 879, 882 (Tex. App.—Dallas 1997, no pet.) (holding that search of locked bank bag before it was placed in the property room was a valid inventory search because it was conducted in light of established departmental policy).
In fact, at the suppression hearing, the State made the following statement: "We don't have a warrant and none of the other exceptions to the warrant requirement obviously apply but the search incident to arrest exception." II R.R. at 31.
See Florida v. Wells , 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) ("Our view that standardized criteria, ibid , or established routine, Illinois v. Lafayette , 462 U.S. 640, 648, 103 S.Ct. 2605, 2610, 77 L.Ed.2d 65 (1983), must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.").
DISSENTING OPINION
Walker, J., filed a dissenting opinion.
Today, this Court holds that a warrantless search of an individual's luggage is justified as a search incident to arrest even though the search occurred after the individual was handcuffed, moved to a new location, and had no access to his bag. Because the purpose of the search incident to arrest exception is officer safety and evidence preservation, and neither purpose was threatened here, I disagree with the Court's decision. Moreover, because there is no exception to the warrant requirement that can justify the search that occurred in this case, I believe this warrantless search was unreasonable and thus violated Appellant's Fourth Amendment right to be free from unreasonable searches and seizures. Accordingly, I respectfully dissent.
For purposes of the Fourth Amendment, a search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.1 In other words, a search occurs when "an expectation of privacy that society is prepared to consider reasonable is infringed."2 "Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment."3 Once it is established that it was a "search," the government generally must have a warrant because warrantless searches are per se unreasonable and therefore unconstitutional, "subject only to a few specifically established and well delineated exceptions."4
Expectation of Privacy
Individuals generally have a subjective expectation of privacy in their personal luggage.5 Notwithstanding this expectation, it is common knowledge that, prior to getting on any flight, one's luggage, whether checked or carried on, will be subject to some type of screening or search. "Consequently, any subjective expectation that [an individual] has that, in boarding a flight, he will not be stopped at the gate or searched, is not one that society recognizes as objectively reasonable."6 Accordingly, airport searches that occur prior to boarding generally do not implicate Fourth Amendment protections.
Here, however, Appellant was arrested and had his bags searched after he had landed, retrieved his checked luggage, and was waiting outside by the curb. Aside from Customs and Border Patrol searches, which are not relevant here, passengers are not expecting their bags to be searched once they have landed and especially not after they have exited the airport. The entire purpose of airport searches is to prevent terrorism and other threats from occurring onboard an airplane.7 When an individual has already landed and is standing outside of the airport, there is no longer any threat he is going to hijack the plane he already arrived on or hurt any of the no-longer airborne passengers. Accordingly, once an individual has landed, collected his luggage, and is standing outside, he has a subjective expectation of privacy in his luggage that society recognizes as reasonable. As such, the search in this case qualified as a "search" under the Fourth Amendment. It therefore must fall within one of the few narrowly defined situations justifying warrantless searches in order to be constitutional. The only exceptions to the warrant requirement that could possibly be construed to apply to this situation are a search incident to arrest, exigent circumstances, or an inventory search.8 That being said, the search in this case was not justified under any of these exceptions for the following reasons.
Search Incident to Arrest
The majority concludes that the search of Appellant's luggage here was justified as a valid search incident to arrest. "A search incident to arrest permits officers to search a defendant, or areas within the defendant's immediate control, to prevent concealment or destruction of evidence. "9 Additionally, it is reasonable for an officer to search incident to arrest to remove any weapons that might be used to resist arrest or effect an escape.10 In other words, a warrantless search incident to arrest is justified on "the need to disarm the suspect" and to "preserve evidence on his person."11 Accordingly, "[p]olice may search incident to arrest only the space within an arrestee's ‘immediate control,’ meaning ‘the area from within which he might gain possession of a weapon or destructible evidence.’ "12 Additionally, "warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as a search incident to that arrest if ... no exigency exists."13 Accordingly, the exigency requirement is a necessary element of the search incident to arrest exception to the warrant requirement and should not be confused with the exigent circumstances exception.
The facts in Chadwick , a case where the Supreme Court refused to hold that the search incident to arrest exception applied, are strikingly similar to this case.14 In Chadwick , the police were informed that there were individuals aboard a train headed towards a certain destination who were believed to be carrying marijuana.15 The officers awaited the appellants’ arrival with a canine unit. A drug dog alerted on the appellants’ luggage, and the officers watched as the appellants walked outside the station with the luggage. The officers then went outside, arrested all three appellants, and seized the luggage. Then, with the bags in the officers’ control and with the appellants in handcuffs, they all went to an office where the luggage was eventually searched and marijuana was discovered. The appellants did not consent to a search and a warrant was not secured. At the Supreme Court, the Government conceded that the luggage was not within the immediate control of the appellants at the time of the search but nevertheless insisted that the search was justified because the luggage "was seized contemporaneously with [the appellants’] arrests and was searched as soon thereafter as was practicable." The Government's argument notwithstanding, the Supreme Court held that the warrantless search was not justified under the search incident to arrest exception because "[o]nce 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." The Supreme Court went on to state that:
Id.
Id. at 4, 97 S.Ct. 2476.
Id.
Id. at 4–5, 97 S.Ct. 2476.
Id. at 4, 97 S.Ct. 2476.
Id. at 14, 97 S.Ct. 2476.
Id. at 15, 97 S.Ct. 2476.
[e]ven though on this record the issuance of a warrant by a judicial officer was reasonably predictable, a line must be drawn. In our view, when 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.
Here, like in Chadwick , officials were alerted that Appellant would be arriving with luggage potentially containing marijuana. A drug dog alerted to the luggage. Officers followed Appellant outside and subsequently arrested him, seized his luggage, and took him to an office where the luggage was eventually searched and marijuana was discovered. From the moment of arrest and until the luggage was searched, officers had exclusive control of Appellant's luggage. There was no danger, after Appellant was in handcuffs and not holding his bags, that Appellant "might gain access to the property to seize a weapon or destroy evidence." Accordingly, the search of his luggage was not "an incident of the arrest." Moreover, because no exigency was shown regarding Appellant's luggage, the opportunity to conduct a justifiable search incident to arrest ended when the luggage came "under the exclusive dominion of police authority."
Id.
Id.
Id.
The majority argues that because of our prior holding in Lalande "the officers were entitled to search the suitcases as a search incident to arrest—if for no other reason than that they unquestionably belonged to him and would inevitably accompany him into custody, where a protective search would take place in any event." I do not agree with the assertion that whether the suitcases would accompany Appellant into custody is relevant to a search incident to arrest analysis. Furthermore, I tend to agree with Judge Keller's assertion in her dissent that the holding in Lalande applies to inventory searches rather than searches incident to arrest, as the majority opines. However, even under the majority's understanding of search incident to arrest, and even if the Lalande holding were to be applied to this case, the search incident to arrest exception would still be inapplicable because there was no chance that Appellant's suitcases would have accompanied him to the jail as his personal property. The suitcases were the only physical evidence that provided probable cause for the arrest. Evidence of a crime that has been seized by officers, as the suitcases were here, does not typically accompany individuals to jail and get put in the property room. Property rooms at jail facilities are for the purpose of storing the personal property of prisoners, not for storing evidence. Also, when prisoners make bail, they are allowed to take their property with them. Again, there is no way that the suitcases full of marijuana were going to be taken with Appellant and placed in the jail property room with his other personal property. After all, doing so would allow Appellant to take the suitcases with him if he were to make bail. It is a near certainty that the suitcases full of marijuana were to be taken to the police evidence room. When evidence is taken to police evidence rooms it is taken there to be safeguarded and kept as evidence of a crime. Defendants are not allowed to take property in an evidence room with them when they make bail. Moreover, it is highly unlikely that the officers searched Appellant's luggage for the purpose of protecting Appellant's property while it remained in their custody or protecting themselves from potential dangers and liability. In reality, they searched his bags to find the contraband the dog alerted on. That is outside the scope of what Lalande permits. Under the facts of this case, no exigency existed, and the search incident to arrest exception does not apply.
Exigent Circumstances
In certain, narrow situations, probable cause coupled with exigent circumstances can support a warrantless seizure and subsequent search. Exigent circumstances, in the context of warrantless searches, are generally defined as
However, this exception, on its own, generally only applies when officers need to search a location. For example, if a location is on fire, if police believe someone is inside and injured, or if, while in "hot pursuit," a suspect runs into a home. Missouri v. McNeely , 569 U.S. 141, 149, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). Seldom does a situation so urgent occur that demands not only immediate seizure of an item but also a search. As such, exigent circumstances, sufficient to permit a warrantless search of an already-seized item, will rarely exist. Jacobsen , 466 U.S. at 114, 104 S.Ct. 1652 ; Texas v. Brown , 460 U.S. 730, 749–51, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring). That being said, the Supreme Court has recognized "that if there is a ‘compelling need for official action and no time to secure a warrant,’ the warrant requirement may be excused." McNeely , 569 U.S. at 149, 133 S.Ct. 1552 (quoting Michigan v. Tyler , 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) ).
those circumstances that would cause a reasonable person to believe that entry [or search] ... was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.
United States v. Camou , 773 F.3d 932, 940 (9th Cir. 2014) (brackets in original) (quoting United States v. McConney , 728 F.2d 1195, 1199 (9th Cir. 1984) (en banc)).
However, the burden is on the State to prove exigent circumstances, and there was no suggestion of any such circumstances at trial. At most, one might be able to argue that there was a risk that Appellant would destroy the evidence in his bag once he knew that the officers were surveilling him. However, the Supreme Court has made clear that while probable cause coupled with exigent circumstances may support warrantless seizure of a bag or container, the same showing is not necessarily sufficient to subsequently justify a warrantless search. For example, in United States v. Jacobsen , the Supreme Court explained that "[e]ven when government agents may lawfully seize ... a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package." Additionally, in United States v. Place , the Supreme Court stated
Fry v. State , 493 S.W.2d 758, 760 (Tex. Crim. App. 1972).
Any argument that Appellant's bag could have potentially had something dangerous in it, such as a bomb, is unfounded. His bag was searched at his departure airport and was not in his control until he was subsequently stopped. Had he been carrying an explosive, it would have already been discovered. Moreover, had the threat of explosives been on the table, a police officer likely would not have walked the bag into and through the airport and rummaged through the luggage himself. Given the circumstances, timing, and location of the search, it is fair to say that there were no time-sensitive threatening concerns at play other than maybe the need to ensure the evidence was not lost or destroyed.
Jacobsen , 466 U.S. at 114, 104 S.Ct. 1652 ; Texas v. Brown , 460 U.S. 730, 749–51, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (Stevens, J., concurring) ("the constitutionality of a container search is not automatically determined by the constitutionality of the prior seizure ... The item may be seized temporarily. It does not follow, however, that the container may be opened on the spot."); Chadwick , 433 U.S. at 13–14 n.8, 97 S.Ct. 2476 ("A search of the interior was ... a far greater intrusion into Fourth Amendment values than the impoundment of the footlocker.").
Jacobsen , 466 U.S. at 114, 104 S.Ct. 1652.
[w]here law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the [Fourth] Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it....
Place , 462 U.S. at 701, 103 S.Ct. 2637.
Moreover, in Chadwick , the Court emphasized that a person has a reasonable expectation of privacy in their luggage and further held that once police have arrested a suspect and immobilized his property, validly seized bags are not subject to search without a warrant. This is because a seizure only deprives an individual of their possessory interest, whereas a search intrudes on one's privacy interests as well. "[T]herefore, once an exigency ends, as by an arrest or the seizure and custodial retention of a container by the police, a neutral judicial officer must authorize any subsequent search...."
Chadwick , 433 U.S. at 13, 97 S.Ct. 2476.
Segura v. United States , 468 U.S. 796, 806, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).
United States v. Doe , 61 F.3d 107, 111 (1st Cir. 1995).
Accordingly, even if there was a legitimate exigent circumstance at play here, which I would argue there was not, the exigency ended when the officer seized the bag and placed Appellant in handcuffs. Thus, simply because there may have potentially been an abstract threat that Appellant would destroy the evidence, such a hypothetical, on its own, does not amount to an exigent circumstance that would justify the warrantless search of Appellant's luggage. In other words, the search here was not justified by way of an exigent circumstance because there is no reason to believe that Appellant would be able to destroy or remove the evidence in his suitcase while he was in handcuffs and the luggage was in the officer's exclusive control. As such, under the facts of this case, the exigent circumstances exception does not apply.
Inventory Searches
In Illinois v. Lafayette , the Supreme Court held "that it 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." The purpose of such an inventory search is "to protect the owner's property while it remains in police custody, to protect the police against claims or disputes over lost or stolen property, and to protect the police from potential dangers." In other words, inventory searches are an administrative protection and "must not be a ruse for a general rummaging in order to discover incriminating evidence."
Illinois v. Lafayette , 462 U.S. 640, 648, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983).
Kelley v. State , 677 S.W.2d 34, 37 (Tex. Crim. App. 1984) (citing South Dakota v. Opperman , 428 U.S. 364, 369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) ).
Florida v. Wells , 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990).
Then, as stated above, in Lalande v. State , we authorized accelerated inventory searches and held that "once it becomes unequivocally clear that the item is to accompany the detainee, the right of inspection accrues immediately, and is not limited to actions carried out within the station itself." Accelerating an inventory search does not render the search illegal because "no additional or greater intrusion on the privacy of the suspect is involved." That is true, however, only when it can be unequivocally shown that the suspect would have been jailed and that the item that was searched would have accompanied the individual to jail and thus been subject to an inventory search. In other words, Lalande does not permit officers to search a suspect's items on the scene simply because they are arresting that person. It must also be unequivocally clear that said item will be coming with the individual to jail as their personal property.
Lalande , 676 S.W.2d 115, 118 (Tex. Crim. App. 1984) (adopting rationale of People v. Bullwinkle , 105 Cal.App.3d 82, 164 Cal. Rptr. 163, 166–67 (1980), disapproved of by People v. Laiwa , 34 Cal.3d 711, 195 Cal.Rptr. 503, 669 P.2d 1278, 1288 (1983) ).
Bullwinkle , 164 Cal. Rptr. at 166.
Lalande , 676 S.W.2d at 118 ; Bullwinkle , 164 Cal. Rptr. at 166.
In this case, the officers had probable cause to believe there was contraband in the luggage and therefore arrest Appellant the moment the dog alerted on his luggage. Again, contrary to the majority's opinion, at this point, there was no chance Appellant's suitcases would be accompanying him to the jail as his personal property because the luggage was the only physical evidence providing probable cause for the arrest.
Florida v. Royer , 460 U.S. 491, 506, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ("a positive result [from a drug sniff] would have resulted in [Appellant's] justifiable arrest on probable cause").
Conclusion
In sum, Appellant had a reasonable expectation of privacy in his luggage. As such, a warrantless search of his luggage was unjustified unless an exception applied to the search. Because this search was not incident to arrest, did not involve any actual exigent circumstances, and was not a proper inventory search, the officer either needed a warrant or Appellant's consent to search his luggage, and the officer had neither. Accordingly, this search violated the Fourth Amendment's proscription against warrantless searches, and the marijuana seized from the luggage should have been suppressed from evidence at trial. Because the majority reaches the opposite conclusion, I respectfully dissent.