MO: Disturbing the peace arrest supports a search incident of shopping bag[!]

Officers had probable cause to arrest defendant for disturbing the police for shouting profanities at the police within earshot of children, and the observers were appalled and startled by it all. The search incident of his plastic shopping bag was reasonable incident to his arrest, and inventory doesn’t even have to be decided. State v. Carrawell, 2015 Mo. App. LEXIS 127 (February 10, 2015). [Note: I submit this holding violates Gant: What evidence can be found that supports disturbing the peace? Yes, defendant was obnoxious, but that’s not a factor in search incident once he’s in custody.]

Carrawell alternatively argues that even if the officers lawfully arrested him, they did not search the bag pursuant to lawful authority. In support of this claim, Carrawell advances several arguments. First, Carrawell maintains that the search cannot be upheld as a lawful search pursuant to abandonment because Carrawell did not voluntarily abandon the bag. Rather, the bag was forcefully removed from his hand by Officer Burgdorf. Second, Carrawell argues that the search cannot be upheld as a lawful inventory search because the State failed to show that the officers’ department has standardized criteria for opening closed containers. Third, Carrawell argues that the search cannot be upheld as a search incident to arrest because at the time of the search, the officers had taken sole possession of the bag, Carrawell was already handcuffed and secured, and the bag was not immediately associated with Carrawell’s person.

The first two arguments are raised by Carrawell in response to the trial court’s stated reasons for denying Carrawell’s motion to suppress. In denying the motion to suppress, the trial court concluded that Carrawell had abandoned the bag, and that even if he did not intend to do so, the bag would have nevertheless been searched during the inventory process. Because we find that the officers’ search of Carrawell’s bag was a search incident to a lawful arrest, we do not address Carrawell’s arguments relating to abandonment or inventory.

The Fourth Amendment to the United States Constitution guarantees the right of all citizens to be free from unreasonable searches and seizures. Article I, section 15 of the Missouri Constitution guarantees that same right. … One such exception is for searches incident to lawful arrests, which permit police officers to search and seize arrested suspects’ effects without a warrant. This exception provides that “[p]ursuant to a lawful arrest, a search may be performed of the arrestee’s person and the area ‘within his immediate control.” State v. Waldrup, 331 S.W.3d 668, 676 (Mo. banc 2011).

Within this exception, police officers are permitted to search, “as part of the search of a person incident to a lawful custodial arrest, the personal effects on the person of an arrestee at the time of the arrest.” Ellis, 355 S.W.3d at 524. Missouri courts have consistently held that personal effects closely associated with a person and within their control at the time of arrest such as purses, jackets, and backpacks may be searched as part of the search of a person incident to a lawful arrest. See, e.g., id. (backpack); State v. Vitale, 795 S.W.2d 484 (Mo. App. E.D. 1990) (jacket); State v. Greene, 785 S.W.2d 574 (Mo. App. W.D. 1990) (purse); State v. Rattler, 639 S.W.2d 277 (Mo. App. E.D. 1982) (purse); State v. Woods, 637 S.W.2d 113 (Mo. App. E.D. 1982) (purse); United States v. Oakley, 153 F.3d 696 (8th Cir.1998) (backpack). The reason that property on a person may be searched as part of the search of a person is that “such property is more ‘immediately associated’ with the ‘person’ of the arrestee than other personal property.” Ellis, 355 S.W.3d at 525. Further, such searches need not be executed contemporaneously with the seizure. It does not matter that the property seized is no longer within the immediate control or reach of the suspect — a lawful search of the property may still occur at that time. See, e.g., Ellis, 355 S.W.3d at 523-25 (stating that “[t]he accessibility of the property to an arrestee while the property is being searched has not been the benchmark” and holding that a backpack searched after the suspect was secured in the police car was a valid search of the suspect’s person incident to a lawful arrest).

We find the facts presented here to be similar to those facts cited above. The bag seized from Carrawell was firmly within his possession and control at the time of arrest. In fact, Carrawell maintained possession of the bag even after being placed under arrest. The bag, just like a purse or backpack, was a personal effect immediately associated with Carrawell’s person. As a result, the officers were entitled to search the bag as part of their search of Carrawell’s person incident to his lawful arrest. The fact that the officers took the bag from Carrawell and Carrawell was subsequently secured in the police car does not detract from the lawfulness of the search incident to arrest.