A tin can in defendant’s hand and dropped as she was handcuffed was “associated with the person” for search incident purposes. Texas recognizes larger items may not be “associated with the person” v. smaller items more easily held. State v. Drury, 2018 Tex. App. LEXIS 7910 (Tex. App. – Ft. Worth Sep. 28, 2018):
B. The tin can was immediately associated with Drury
A search incident to a lawful arrest requires no warrant if it is restricted to (1) a search of the person or of objects “immediately associated” with the person of the arrestee or (2) a search of objects in an area within the immediate control of the arrestee. Stewart v. State, 611 S.W.2d 434, 436 (Tex. Crim. App. [Panel Op.] 1981). Among other things, purses, wallets, and certain types of bags have been held to be immediately associated with an arrestee, while luggage, guitar cases, a sealed cardboard box, and a foot locker—among other things—have not. See Lalande v. State, 651 S.W.2d 402, 405 (Tex. App.—El Paso 1983), aff’d, 676 S.W.2d 115 (1984); see also United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 2485 (1977). The court of criminal appeals has not articulated a bright-line rule for immediate association, and cases addressing the issue almost always turn on their own facts, but they do appear to share one fact in common—actual physical possession of the object at or immediately before the time of arrest.
We find three cases particularly instructive: Curry v. State, 831 S.W.2d 485, 487-88 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d), in which the court of appeals concluded that an immediate association existed between appellant and a brown paper sack that he dropped while fleeing from police; Johnson v. State, 864 S.W.2d 708, 724 (Tex. App.—Dallas 1993) (op. on remand), aff’d, 912 S.W.2d 227 (Tex. Crim. App. 1995), in which the court of appeals concluded that an immediate association existed between appellant and a Crown Royal bag that he dropped while fleeing from police; and United States v. Nichols, No. 17-40007-01-DDC, 2018 WL 504634, at *4-5 (D. Kan. Jan. 22, 2018), in which the federal district court concluded that an immediate association existed between the defendant and a container that was attached to his keys, which were dropped to the ground just as the defendant was handcuffed.
Similarly, here, Officer Flores observed Drury holding the tin can when she opened the closet door, she retrieved the tin can from the floor immediately after placing handcuffs on Drury, and she immediately searched the container, first in Drury’s presence and again after putting him in a patrol car. Though obviously not identical, we believe the tin can is more akin to the bags in Curry and Johnson and the container in Nichols than to a form of luggage or other untypical object legally incapable of immediate association with an arrestee. We agree with the State that the tin can was immediately associated with Drury.