KY: Search incident of backpack of street drug dealer was reasonable

The search incident of defendant’s backpack during his stop and arrest for a hand-to-hand sale of synthetic marijuana was reasonable. Surveying all SCOTUS search incident cases and cases from many states, the backpack was essentially a part of his “person.” Commonwealth v. Bembury, 2023 Ky. LEXIS 259 (Aug. 24, 2023):

Accordingly, we simply cannot agree that the search of an unlocked backpack that was part of an arrestee’s person at the time of arrest constitutes such a substantial invasion beyond the arrest itself that a warrant is required to search it. On that front, it is important to highlight that, contrary to the dissent’s assertion that, “based on the Majority rule, any container, regardless of . . . whether it is locked” may be searched incident to arrest is not at issue in the case now before us. While we agree that in accordance with Chadwick, the fact that a container is locked may result in a heightened privacy interest, the container at issue in this case was not locked. In addition, the fact that the footlocker in Chadwick was locked was only part of the Supreme Court’s basis for invalidating the search. The Court’s primary holding was that “warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest[.]'” Whereas the search of Bembury’s backpack occurred immediately after, and in the same location as, his arrest. Additional consideration must also be given to the fact that, in this case, Bembury was pulling illegal items out of his backpack in a public place and in the plain view of the officers.

Based on the foregoing discussion, we conclude that a container capable of carrying items, such as a backpack, can be considered part of an arrestee’s “person” for the purposes of a search incident to lawful arrest. And, until the U.S. Supreme Court speaks on the matter, the time of arrest rule is a well-reasoned and common-sense way to determine whether such a container is considered part of an arrestee’s person and therefore subject to being searched. Accordingly, we hold that to be considered part of an arrestee’s person, a container must be in the arrestee’s actual and exclusive possession, as opposed to constructive possession, at or immediately preceding the time of arrest such that the item must necessarily accompany the arrestee into custody.

In accordance with this standard, we hold that the Bembury’s backpack was part of his person at the time of his arrest. Although we assume that Bembury was carrying his backpack when the officers initially spotted him, the trial court’s fact findings are silent in that regard. However, the trial court’s findings do state that the officers “observed Napier hand [Bembury] U.S. Currency in an unknown amount, which [Bembury] placed inside his backpack. Officer Ray then observed [Bembury remove] a white paper from his backpack, sprinkle a substance inside it, roll it up and hand it to Napier.” Like the arrestee in Mercier, Bembury’s actions in putting items into and taking items out of the backpack established his actual and exclusive, rather than constructive, possession of it. There was no suggestion that the backpack belonged to anyone other than Bembury, and it was still with him when Officer Ray returned to the courtyard to arrest him. Furthermore, as the officers could not have simply left Bembury’s backpack in the courtyard, it was an item that necessarily and inevitably would have accompanied him to jail. And of course, we should not, and cannot, expect officers to either leave behind, or blindly transport within their vehicles, potentially dangerous or deadly contraband.

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