RENDERED: AUGUST 24, 2023

TO BE PUBLISHED

Supreme Court of Kentucky

2022-SC-0018-DG

COMMONWEALTH OF KENTUCKY APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2020-CA-1429-MR

FAYETTE CIRCUIT COURT NO. 19-CR-01326

WILLIAM BEMBURY APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT

REVERSING

William Bembury (Bembury) entered a guilty plea to one count of 

possession of synthetic drugs on the condition that he could appeal the Fayette 

Circuit Court’s denial of his motion to suppress evidence recovered from his 

backpack. Before the Court of Appeals, Bembury asserted that his backpack

was searched in violation of his rights against unlawful search and seizure 

under the Fourth Amendment of the United States Constitution1 and Section 

Ten of Kentucky’s Constitution.

2 A split Court of Appeals panel reversed and 

held that no exception to the rule requiring that searches be supported by a 

warrant applied. The Commonwealth now appeals that ruling. After thorough 

1 U.S. Const. amend. IV.

2 Ky. Const. § 10.
2

review, we reverse the Court of Appeals and reinstate the circuit court’s order 

denying Bembury’s motion to suppress.

I. FACTS AND PROCEDURAL BACKGROUND 

The facts of this case are not in dispute. On August 14, 2019, Officer 

Adam Ray (Officer Ray) was assigned to the Bureau of Special Operations, 

Bicycle Unit, with the Lexington Police Department. His assignment was to 

patrol the downtown entertainment district. At approximately 6 p.m. he and 

an Officer Kennedy observed an individual named Joseph Napier (Napier) 

approach Bembury on a sidewalk near Phoenix Park. Officer Ray was familiar 

with Bembury from his experience patrolling that area. He also knew Bembury

to be an individual that sold synthetic marijuana based on complaints from 

security personnel at the Lexington Public Library as well as statements from 

individuals who had been arrested for possession of synthetic marijuana and

reported to police that they had purchased the substance from Bembury. 

Bembury and Napier had a brief conversation and then began walking 

away from the area together. This raised the officers’ suspicions, so they 

followed the pair to the courtyard of the Chase Bank building down the street. 

Officer Kennedy watched Bembury and Napier as they sat at a picnic table in 

the courtyard while Officer Ray positioned himself in the first level of a parking 

garage next to the courtyard. Officer Ray had an unobscured view of Bembury 

and Napier, although they were sitting with their backs to him. Officer Ray 

could not recall if he used binoculars to observe them, but testified it was his 

habit to do so. He watched Napier give Bembury an unknown amount of U.S. 
3

currency. Bembury then placed the money in his backpack, which was on the 

table in front of him. Next, Bembury took a white rolling paper out of his 

backpack and reached back into his backpack and took out a substance that 

he sprinkled into the rolling paper, rolled into a joint, and handed to Napier. 

Napier then put the joint into his backpack and walked away. 

The officers followed and stopped Napier. They told him they had just 

watched his transaction with Bembury and asked him to give them the joint. 

Napier complied with the Officers’ request and told them he had paid Bembury 

about five dollars for it. During the summer months, Officer Ray encountered 

synthetic marijuana almost every day. Based on his experience, in particular 

the odor and appearance of the substance in the joint, he believed it was 

synthetic marijuana. At that point, Officer Kennedy stayed with Napier while 

Officer Ray rode back to Bembury who was still sitting at a picnic table in the 

courtyard of the bank building. Officer Ray told Bembury he was under arrest 

and placed him in handcuffs. The officer then performed a cursory “look 

through” of Bembury’s backpack, but he stopped the search and decided to 

wait for Officer Kennedy to arrive before conducting a more thorough search. 

When Officer Kennedy arrived, Officer Ray filled out paperwork while Officer 

Kennedy searched Bembury’s backpack. During the search, Officer Kennedy 

found a baggie of synthetic marijuana that was approximately the size of a golf 

ball, a pack of rolling papers, and seven one-dollar bills. Until it was moved to 

perform the search, Bembury’s backpack remained on the picnic table in front 

of him. He did not consent to the search.
4

On January 28, 2020, Bembury filed a motion to suppress the evidence 

recovered from his backpack. He argued that the warrantless search of his 

backpack violated the Fourth Amendment of the U.S. Constitution and Section 

Ten of Kentucky’s Constitution. During the suppression hearing that followed, 

Officer Ray was the Commonwealth’s only witness, and his testimony 

recounted the facts as stated above. Following supplemental memoranda from 

both parties, the circuit court entered an opinion and order denying Bembury’s 

motion to suppress. The circuit court reasoned that 

[i]n [Arizona v. Gant],

3 the Supreme Court held a search incident to 

a lawful arrest encompasses the search of a vehicle and any 

containers found within the vehicle “when the arrestee is within 

reaching distance of the vehicle or it is reasonable to believe the 

vehicle contains evidence of the offense of arrest.”

The court then relied on an unpublished Court of Appeals opinion, Agee v. 

Commonwealth,

4 which applied Gant and upheld a warrantless search of a 

backpack under factually similar circumstances because the officers had a 

reasonable basis to believe the bag contained evidence of Agee’s crime of public 

intoxication. Based on Gant and Agee, the circuit court found that the search 

of Bembury’s backpack was lawful as a search incident to his lawful arrest 

because the officers “had a reasonable belief the backpack contained evidence 

of the offense of arrest.” 

3 556 U.S. 332 (2009).

4 2010-CA-001122-MR, 2014 WL 3795492 (Ky. App. Aug. 1, 2014).
5

The Court of Appeals disagreed with the circuit court’s ruling and

reversed.5 The court noted that warrantless searches made incident to arrest 

are divided into two categories: searches of the arrestee’s person and searches 

of the area within the arrestee’s control.6 And, that the latter category of 

warrantless search must be justified on the grounds of ensuring the arresting 

officer’s safety and to prevent the destruction of evidence.7 The court further 

acknowledged that in Gant, the U.S. Supreme Court created an independent 

justification for the warrantless search of an arrestee’s vehicle when the 

arresting officer has a reasonable belief that the vehicle contains evidence of 

the crime of arrest.8 

However, the court held that the search of Bembury’s backpack could 

not be upheld as a search of the area within his immediate control because at 

the time of the search he was handcuffed and therefore did not have the ability 

to destroy evidence or pose a threat to the officers’ safety.9 Moreover, it held 

that the Gant exception allowing warrantless searches in order to recover 

evidence of the crime of arrest applies only to vehicle searches due to the 

“circumstances unique to the vehicle context.”10

5 Bembury v. Commonwealth, 2020-CA-1429-MR, 2021 WL 5856104, at *1 (Ky. 

App. Dec. 10, 2021).

6 Id. at *2 (citing United States v. Robinson, 414 U.S. 218, 224 (1973)). 

7 Bembury, 2021 WL 5856104, at *2 (citing Gant, 556 U.S. at 339). 

8 Id. at *2.

9 Id. 

10 Id. (quoting Gant, 556 U.S. at 343). 
6

The Court of Appeals next addressed whether the search of Bembury’s 

backpack could be upheld as a search of his person, noting that the “authority 

to search the arrestee's actual person without a warrant has been extended to 

include ‘personal property . . . immediately associated with the person of the 

arrestee[.]’”

11 The court agreed with Bembury’s assertion that his backpack 

was more akin to the 200 lbs. double locked footlocker that the U.S. Supreme 

Court held could not be searched without a warrant in United States v. 

Chadwick than other items on an arrestee’s person that the Supreme Court 

and lower federal courts have held can be searched incident to arrest such as a 

cigarette packet, a billfold and address book, a wallet, and a purse.12 The court 

reasoned that although “the backpack was portable and Bembury had control 

over it throughout the time he was observed by the police . . . a backpack is 

functionally distinguishable from a cigarette packet, wallet, address book or 

even a purse” because “[l]ike luggage, it is intended as a repository of personal 

effects . . . and is likely to contain many more items of a personal nature than 

the small items recovered directly from the person of an arrestee.”

13

Finally, the Court of Appeals held that there was insufficient evidence 

presented at the suppression hearing to nevertheless allow the evidence to be 

11 Bembury, 2021 WL 5856104, at *3 (quoting United States v. Chadwick, 433 

U.S. 1, 15 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565

(1991)).

12 Bembury, 2021 WL 5856104, at *3.

13 Id. (internal quotation marks omitted). 
7

admitted under the inevitable discovery doctrine.

14 Under this doctrine,

“[e]vidence unlawfully obtained by police is nevertheless admissible if the 

prosecution can establish by a preponderance of the evidence that the 

information ultimately or inevitably would have been discovered by lawful 

means.”

15 The court reasoned that the Commonwealth did not raise its 

inevitable discovery argument until after the suppression hearing in its 

supplemental memorandum, and that Officer Ray testified that he did not 

know if an inventory search of the backpack was conducted by the detention 

center and that it was likely returned to Bembury after the synthetic 

marijuana, rolling papers, and money were removed from it.16 Judge Taylor 

concurred only with the court’s result without separate opinion, and Judge

Larry Thompson dissented without separate opinion.17 

The Commonwealth now challenges the Court of Appeals’ ruling before 

this Court. 

II. ANALYSIS 

The Commonwealth contends that the Court of Appeals’ decision directly 

conflicts with Agee, the opinion relied upon by the circuit court, and that it 

improperly extends the U.S. Supreme Court’s holding in Chadwick. The 

Commonwealth further asserts that the search of Bembury’s backpack was 

14 Id. at *4.

15 Id. (quoting Dye v. Commonwealth, 411 S.W.3d 227, 238 (Ky. 2013)) (internal 

quotation marks omitted). 

16 Bembury, 2021 WL 5856104, at *4.

17 Id. at *5.
8

justifiable as a search incident to his lawful arrest. In the alternative, the 

Commonwealth argues that the evidence was admissible under the inevitable 

discovery doctrine. 

In response, Bembury agrees that the Court of Appeals’ ruling conflicts 

with Agee but argues that Agee was wrongly decided. He asserts that 

Chadwick is dispositive and requires this Court to hold that the search of his 

backpack violated his Fourth Amendment rights. He further contends that 

there was insufficient evidence presented by the Commonwealth to hold that 

the inevitable discovery doctrine applies.

A. Standard of Review

When reviewing a trial court’s ruling on a defendant’s motion to 

suppress, an appellate court applies different standards of review to its findings 

of fact and conclusions of law, respectively. In accordance with those wellestablished standards, we must first determine whether the trial court’s 

findings of fact were supported by substantial evidence,18 or, “evidence that a 

reasonable mind would accept as adequate to support a conclusion and 

evidence that, when taken alone or in the light of all the evidence . . . has 

sufficient probative value to induce conviction in the minds of reasonable 

men.”19 If the trial court’s fact findings are supported by substantial evidence, 

then they are conclusive, and we must then “conduct a de novo review of the 

18 See, e.g., Payton v. Commonwealth, 327 S.W.3d 468, 471 (Ky. 2010).

19 Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (defining “substantial 

evidence”) (internal quotation marks omitted).
9

trial court's application of the law to those facts to determine whether its 

decision is correct as a matter of law.”

20 De novo review affords “no deference 

to the trial court's application of the law to the established facts.”

21

As noted, the facts of this case are uncontested. In denying Bembury’s 

motion to suppress, the court made the following pertinent findings of fact: the 

investigating officers had reason to believe Bembury had previously trafficked 

synthetic marijuana; they observed what they believed to be a hand-to-hand 

synthetic marijuana transaction between Napier and Bembury that occurred in 

a public area; during the transaction, they saw Bembury reaching into his 

backpack to access the illicit substance; they stopped Napier and confirmed 

that the substance sold to him was synthetic marijuana based on their 

experience; and they arrested Bembury and searched his backpack 

immediately following his arrest. We hold these facts are supported by 

substantial evidence and now turn to the questions of law presented. 

B. The search of Bembury’s backpack was a search of his person incident 

to his lawful arrest and did not violate his rights against unlawful 

search and seizure. 

The Fourth Amendment to the U.S. Constitution provides that 

[t]he right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to 

be seized. 

20 Payton, 327 S.W.3d at 471–72.

21 Horn v. Commonwealth, 240 S.W.3d 665, 669 (Ky. App. 2007).
10

In a similar manner, Section 10 of the Kentucky Constitution states that 

[t]he people shall be secure in their persons, houses, papers and 

possessions from unreasonable search and seizure; and no 

warrant shall issue to search a place, or seize any person or thing, 

without describing them as nearly as may be, nor without probable 

cause supported by oath or affirmation.

For over a century, this Court has recognized that “there is no substantial 

difference between the wording of the clause in the federal and state 

Constitutions,” and that it is therefore appropriate to look to U.S. Supreme 

Court precedent for guidance in construing Section 10.22 

It is well-established under both Kentucky and U.S. Supreme Court 

jurisprudence that “all searches without a valid search warrant are 

unreasonable unless shown to be within one of the exceptions to the rule that 

a search must rest upon a valid warrant.”23 Accordingly, in order for us to hold 

that Bembury’s Fourth Amendment rights were violated by the search of his 

backpack, we must find that the officers’ actions constituted a search, that 

they acted without a warrant or consent, and that no established exception to 

the warrant requirement applies.24 It is not disputed that the officer’s actions 

constituted a search and that the search was conducted without a warrant or 

Bembury’s consent. The dispositive question is therefore whether an exception 

22 Youman v. Commonwealth, 224 S.W. 860, 862 (Ky. 1920). 

23 Commonwealth v. Reed, 647 S.W.3d 237, 243 (Ky. 2022) (quoting Cook v. 

Commonwealth, 826 S.W.2d 329, 330 (Ky. 1992)). Accord Katz v. United States, 389 

U.S. 347, 357 (1967) (“[S]earches conducted outside the judicial process, without prior 

approval by judge or magistrate, are per se unreasonable under the Fourth 

Amendment—subject only to a few specifically established and well-delineated 

exceptions.”).

24 See Reed, 647 S.W.3d at 243. 
11

to the warrant requirement applies. More specifically, whether the search was 

justifiable as being incident to Bembury’s lawful arrest. 

Recently, in Riley v. California,

25 which addressed whether cell phone 

data can be searched incident to arrest, the U.S. Supreme Court discussed the 

history of its cases involving the search incident to arrest exception. It began 

its discussion with Chimel v. California,

26 which it credited for “[laying] the 

groundwork for most of the existing search incident to arrest doctrine.”

27 In 

Chimel, police officers arrested Chimel in his home and then, acting without a 

search warrant, proceeded to search the entirety of his three-bedroom home, 

including his garage and attic.28 In addressing Chimel’s appeal, the Court 

crafted the following rule for determining the reasonableness of a search 

incident to arrest:

When an arrest is made, it is reasonable for the arresting officer to 

search the person arrested in order to remove any weapons that 

the latter might seek to use in order to resist arrest or effect his 

escape. Otherwise, the officer's safety might well be endangered, 

and the arrest itself frustrated. In addition, it is entirely 

reasonable for the arresting officer to search for and seize any 

evidence on the arrestee's person in order to prevent its 

concealment or destruction. . . . There is ample justification, 

therefore, for a search of the arrestee's person and the area ‘within 

his immediate control’—construing that phrase to mean the area 

from within which he might gain possession of a weapon or 

destructible evidence.29

25 573 U.S. 373 (2014).

26 395 U.S. 752 (1969).

27 Riley, 573 U.S. at 382-83.

28 Id. at 383.

29 Id. (quoting Chimel, 395 U.S. at 762-63).
12

The Court held that the search of Chimel’s home was unlawful “because it was 

not needed to protect officer safety or to preserve evidence.”

30

The Riley Court next discussed that four years after Chimel, in United 

States v. Robinson,

31 the Court applied Chimel’s analysis within the context of a 

search of an arrestee’s person incident to arrest.32 In Robinson, a police officer 

arrested Robinson for driving with a revoked license, conducted a pat down 

search, and felt an object he could not identify in Robinson’s coat pocket.33 

The officer removed the object, a crumpled cigarette packet, and discovered 

several heroin capsules inside.34 The Court of Appeals held that the officer’s 

search of Robinson was unreasonable “because Robinson was unlikely to have 

evidence of the crime of arrest on his person,” and because “it could not be 

justified as a protective search for weapons.”35 The Riley Court said the 

following of the Robinson decision to reverse the Court of Appeals:

This Court reversed, rejecting the notion that “case-by-case 

adjudication” was required to determine “whether or not there was 

present one of the reasons supporting the authority for a search of 

the person incident to a lawful arrest.” As the Court explained, 

“[t]he 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.” 

Instead, a “custodial arrest of a suspect based on probable cause is 

30 Riley, 573 U.S. at 383.

31 414 U.S. 218 (1973).

32 Riley, 573 U.S. at 383.

33 Id. 

34 Id. 

35 Id. at 383-34.
13

a reasonable intrusion under the Fourth Amendment; that 

intrusion being lawful, a search incident to the arrest requires no 

additional justification.”

The Court thus concluded that the search of Robinson was 

reasonable even though there was no concern about the loss of 

evidence, and the arresting officer had no specific concern that 

Robinson might be armed. In doing so, the Court did not draw a 

line between a search of Robinson's person and a further 

examination of the cigarette pack found during that search. It 

merely noted that, “[h]aving in the course of a lawful search come 

upon the crumpled package of cigarettes, [the officer] was entitled 

to inspect it.” A few years later, the Court clarified that this 

exception was limited to “personal property ... immediately 

associated with the person of the arrestee.” United States v. 

Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) 

(200–pound, locked footlocker could not be searched incident to 

arrest), abrogated on other grounds by California v. Acevedo, 500 

U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).36

The Court clarified that Robinson is its only decision that applies Chimel to the 

search of an item found on an arrestee’s person.37 Nevertheless, it went on to 

note that “[l]ower courts applying Robinson and Chimel . . . have approved 

searches of a variety of personal items carried by an arrestee,”

38 including a 

billfold and address book,39 a wallet,40 and a purse.41 The Court unequivocally 

disagreed with the government’s argument that “a search of all data stored on a 

cell phone is ‘materially indistinguishable’ from searches of these sorts of 

36 Id. 

37 Id. at 392.

38 Id. 

39 United States v. Carrion, 809 F.2d 1120 (5th Cir. 1987).

40 United States v. Watson, 669 F.2d 1374 (11th Cir. 1982).

41 United States v. Lee, 501 F.2d 890 (D.C. Cir. 1974).
14

physical items,” stating: “[m]odern cell phones, as a category, implicate privacy 

concerns far beyond those implicated by the search of a cigarette pack, a 

wallet, or a purse.”42 

Finally, the Riley Court discussed Gant, which it identified as the final 

case in the “search incident to arrest trilogy.”43 Gant addressed the 

circumstances under which an arrestee’s vehicle may be searched incident to 

his or her arrest.44 The Gant Court concluded “that Chimel could authorize 

police to search a vehicle ‘only when the arrestee is unsecured and within 

reaching distance of the passenger compartment at the time of the search.’”

45 

However, the Gant Court added “an independent exception for a warrantless 

search of a vehicle's passenger compartment [and any containers therein] when 

it is reasonable to believe evidence relevant to the crime of arrest might be 

found in the vehicle.”46 This exception did not flow from Chimel and is specific 

to vehicle searches due to the “circumstances unique to the vehicle context.”47 

From the foregoing discussion, we discern that the U.S. Supreme Court 

distinguishes between and applies different standards to: (1) a search of an 

arrestee’s person; (2) a search of the area within the arrestee’s immediate 

control; and (3) a search of an arrestee’s vehicle and the containers therein.

42 Riley, 573 U.S. at 393.

43 Id. at 384.

44 Id. 

45 Id. at 385.

46 Id. (internal quotation marks omitted). 

47 Id. 
15

When an arrestee’s person is searched pursuant to a valid arrest, “a 

search incident to the arrest requires no additional justification” because “[a] 

custodial arrest of a suspect based on probable cause is a reasonable intrusion 

under the Fourth Amendment,” and “[i]t is the fact of the lawful arrest which 

establishes the authority to search[.]”48 Stated differently, an officer may 

search an arrestee’s person following a lawful arrest without needing to justify 

the search by showing it was necessary to ensure the officer’s safety or to 

prevent the destruction of evidence because those concerns are inherent in 

every custodial arrest. In contrast, when an arresting officer searches the area 

within the arrestee’s immediate control without a warrant, the search must be 

limited to an area from which the arrestee could either obtain a weapon or 

destroy evidence.49 Finally, police may search an arrestee’s vehicle if the 

arrestee is unsecured and can access the vehicle or if the officer has a 

reasonable belief that the vehicle may contain evidence of the crime of arrest. 

Pertinent to this case, and as noted by the Riley Court, the search of an 

arrestee’s “person” includes personal property immediately associated with the 

person of the arrestee so long as the search is not “remote in time or place from 

48 Robinson, 414 U.S. at 235. 

49 Chimel, 395 U.S. at 768 (“The search here went far beyond the petitioner's 

person and the area from within which he might have obtained either a weapon or 

something that could have been used as evidence against him. There was no 

constitutional justification, in the absence of a search warrant, for extending the 

search beyond that area.”). 
16

the arrest.”50 This was the rule established by Chadwick, upon which the 

Court of Appeals’ opinion below relies. 

In Chadwick, Amtrak railroad officials in San Diego observed Gregory 

Machado and Bridget Leary load a 200 lbs. double locked footlocker onto a 

train bound for Boston.51 The trunk raised suspicions due to its unusually 

heavy weight and because it was leaking talcum powder, a substance used to 

mask the smell of marijuana.52 When the footlocker arrived in Boston, federal 

agents observed Machado and Leary claim the footlocker and later watched as 

Machado and Joseph Chadwick loaded it into the trunk of Chadwick’s car 

while Leary waited in the car.53 Before the suspects closed the trunk, the 

agents arrested Machado, Leary, and Chadwick.54 

The arrestees were then transported to the Federal Building in Boston 

while agents followed in Chadwick’s car with the footlocker.55 The footlocker 

remained under the exclusive control of the officers at all times following the 

arrests and was ultimately placed in the Federal Building.56 The warrantless 

search of the trunk was not conducted by the officers until an hour and a half 

after the arrests; a large amount of marijuana was found.

57 Chadwick, 

50 Chadwick, 433 U.S. at 15.

51 Id. at 3.

52 Id. 

53 Id. at 4.

54 Id. 

55 Id. 

56 Id. 

57 Id. at 4-5.
17

Machado, and Leary were charged with possession of marijuana with intent to 

distribute and conspiracy and moved to suppress the evidence found in the 

footlocker.58 The district court granted the motion, and the Court of Appeals 

affirmed on the basis that the search was not justified as a search incident to 

lawful arrest.59

The U.S. Supreme Court affirmed.60 The Court began by rejecting the 

government’s contention that the Fourth Amendment Warrant Clause only 

protects an individual’s home.61 The Court reiterated its previous tenet that 

“the Fourth Amendment protects people, not places[.]”62 Specifically, “it 

protects people from unreasonable government intrusions into their legitimate 

expectations of privacy.”63 The Court held that 

[b]y placing personal effects inside a double-locked footlocker, 

respondents manifested an expectation that the contents would 

remain free from public examination. No less than one who locks 

the doors of his home against intruders, one who safeguards his 

personal possessions in this manner is due the protection of the 

Fourth Amendment Warrant Clause. There being no exigency, it 

was unreasonable for the Government to conduct this search 

without the safeguards a judicial warrant provides.64 

The Court also rejected the Government’s argument “that the 

Constitution permits the warrantless search of any property in the possession 

58 Id. 

59 Id. at 5-6.

60 Id. at 6.

61 Id. at 6-7.

62 Id. at 7 (quoting Katz, 389 U.S. at 351) (internal quotation marks omitted).

63 Chadwick, 433 U.S. at 7.

64 Id. at 11. 
18

of a person arrested in public, so long as there is probable cause to believe that 

the property contains contraband or evidence of crime,” and that the search of 

the footlocker was reasonable because it was seized contemporaneously with 

the arrests and was searched as soon as “practicable” thereafter.65 The Court 

opined that “the reasons justifying search in a custodial arrest are quite 

different” because “there is always some danger that the person arrested may 

seek to use a weapon, or that evidence may be concealed or destroyed.”

66 

Accordingly, 

[s]uch searches may be conducted without a warrant, and they 

may also be made whether or not there is probable cause to believe 

that the person arrested may have a weapon or is about to destroy 

evidence. 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. United States v. Robinson, 414 U.S. 

218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) . . . However, 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, . . . or no exigency exists. 

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 

that property is no longer an incident of the arrest.

67

The Court held that “[h]ere the search was conducted more than an hour after 

federal agents had gained exclusive control of the footlocker and long after 

65 Id. at 14.

66 Id. 

67 Id. at 14-15 (internal citations and quotation marks omitted) (emphasis 

added). 
19

respondents were securely in custody; the search therefore cannot be viewed as 

incidental to the arrest[.]”68

With the foregoing precedents in mind, the issue now before this Court is 

whether the search of Bembury’s backpack was justifiable as a search incident 

to his lawful arrest. To resolve this issue, we must decide, as a matter of first 

impression, whether Bembury’s backpack was an item of “personal property . . 

. immediately associated with [his] person,”69 or whether it was “the area 

‘within his immediate control’—construing that phrase to mean the area from 

within which he might gain possession of a weapon or destructible evidence.”

70 

If the backpack is properly considered part of Bembury’s “person,” then the 

search was lawful as no additional justification for the search other than it 

being incident to his arrest was needed. However, if the backpack was instead 

“the area within his immediate control,” we would then need to address 

whether the search of the backpack was justified based on officer safety or the 

preservation of evidence. 

As the U.S. Supreme Court has not yet directly opined on this issue, 

lower federal and state courts have been left to our own devices in determining 

how to draw the line between what constitutes a “Robinson search” of an 

arrestee’s person and a “Chimel search” of the area within an arrestee’s 

immediate control when a portable container capable of carrying items—

68 Id. at 15.

69 Id. 

70 Riley, 573 U.S. at 383 (quoting Chimel, 395 U.S. at 762-63).
20

purses, backpacks, suitcases, briefcases, gym bags, computer bags, fanny 

packs, etc.—are concerned. Unsurprisingly, there is little uniformity to speak 

of in the manner in which our nation’s courts have addressed this issue. 

Indeed, many have not yet parsed the issue in those exact terms. One test, 

however, has gained some traction in a handful of jurisdictions and we believe 

its adoption in this Commonwealth will provide uniformity and clear authority 

for our bench, bar, and law enforcement in determining when such items may 

lawfully searched incident to arrest. 

The test, as coined by the Washington Supreme Court, is known as the 

“time of arrest” rule. Washington’s highest court explicitly adopted this test in 

State v. Byrd.

71 In that case, Lisa Byrd was a passenger in a stolen vehicle that 

was stopped by the police.72 An officer arrested Byrd while she was sitting in 

the passenger seat with her purse on her lap.73 Before removing her from the 

vehicle, the officer took her purse and sat it on the ground nearby.74 The 

officer then placed Byrd in his cruiser, and returned to the purse within 

moments to search it; methamphetamine was found therein.75 The trial court 

granted Byrd’s motion to suppress the evidence found in her purse, and the 

Court of Appeals affirmed.76 Relying on Gant, the Court of Appeals held that 

71 310 P.3d 793 (Wash. 2013).

72 Id. at 795. 

73 Id. 

74 Id. 

75 Id. 

76 Id.
21

the search was not incident to her arrest “[b]ecause Byrd was restrained and 

could not obtain a weapon from or destroy evidence in her purse when [the 

officer] searched it[.]”77 

The Washington Supreme Court reversed. It began by discussing that 

unlike searches of an arrestee’s surroundings or “grab area,” “[t]he authority to 

search an arrestee's person and personal effects flows from the authority of a 

custodial arrest itself.”78 Moreover, it noted that “exigencies are presumed 

when an officer searches an arrestee’s person,” and that “[t]he search incident 

to arrest rule respects that an officer who takes a suspect into custody faces an 

unpredictable and inherently dangerous situation and that officers can and 

should put their safety first.”79 And, nothing in Gant “requires case-specific 

showings of officer safety or evidence preservation to justify the search of an 

arrestee’s person,” as that case only concerned “searches of the area 

immediately around the arrestee, not the arrestee’s person.”80 

The Court then turned to the issue of whether Byrd’s purse was part of 

her person at the time of her arrest.81 It cited language from Chadwick that 

“[requires] Chimel justification only for searches of ‘personal property not 

immediately associated with the person of the arrestee,’” and noted the time of 

77 Id.

78 Id. at 796 (quoting Robinson, 414 U.S. at 232 (noting “[t]he peace officer 

empowered to arrest must be empowered to disarm. If he may disarm, he may search, 

lest a weapon be concealed[.]”)).

79 Byrd, 310 P.3d at 797.

80 Id. 

81 Id.
22

arrest rule can be used “to draw a bright line between [the] two prongs of the 

search incident to arrest exception.”82 It explained:

Under this rule, an article is “immediately associated” with the 

arrestee's person and can be searched under Robinson, if the 

arrestee has actual possession of it at the time of a lawful custodial 

arrest. . . . The time of arrest rule reflects the practical reality that 

a search of the arrestee's “person” to remove weapons and secure 

evidence must include more than his literal person. In United 

States v. Graham, 638 F.2d 1111, 1114 (7th Cir.1981), the court 

explained that “[t]he human anatomy does not naturally contain 

external pockets, pouches, or other places in which personal 

objects can be conveniently carried.” When police take an arrestee 

into custody, they also take possession of his clothing and 

personal effects, any of which could contain weapons and 

evidence. The time of arrest rule recognizes that the same 

exigencies that justify searching an arrestee prior to placing him 

into custody extend not just to the arrestee's clothes, however we 

might define them, but to all articles closely associated with his 

person.83

Importantly, the Court went on to 

caution that the proper scope of the time of arrest rule is narrow, 

in keeping with this “jealously guarded” exception to the warrant 

requirement. It does not extend to all articles in an arrestee's 

constructive possession, but only those personal articles in 

the arrestee's actual and exclusive possession at or 

immediately preceding the time of arrest. . . . Searches of the 

arrestee's person incident to arrest extend only to articles “in 

such immediate physical relation to the one arrested as to be 

in a fair sense a projection of his person.” United States v. 

Rabinowitz, 339 U.S. 56, 78, 70 S.Ct. 430, 94 L.Ed. 653 (1950) 

(Frankfurter, J., dissenting) (describing the historical limits of the

exception). Extending Robinson to articles within the arrestee's 

reach but not actually in his possession exceeds the rule's 

rationale and infringes on territory reserved to Gant[.]84

82 Id. at 798.

83 Id. (internal citation omitted). 

84 Id. at 799 (internal citations omitted) (emphasis added). 
23

Relying on this rule, the Court held that “because Byrd’s purse was on her lap 

at the time of her arrest, it was an article on her person.”85

Two years after Byrd, the Washington Supreme Court clarified what is 

meant by “immediately preceding the time of arrest” in State v. Brock.

86 In 

Brock, an officer observed Antoine Brock trespassing in a park bathroom and 

waited for him to exit.87 When Brock emerged from the bathroom the officer 

had Brock remove the backpack he was carrying and conducted a Terry88 stop 

and frisk.89 The officer then had Brock walk with him to his vehicle so that he 

could run the identification information Brock gave him through a database.90 

For safety reasons, the officer carried Brock’s backpack and placed it on the 

passenger seat of his vehicle while Brock stood 12-15 feet away from the truck 

on a curb.

91 

After determining that Brock had given him false information, the officer 

placed him under arrest but did not handcuff him.92 The officer left Brock 

standing on the curb and returned to his vehicle to search his backpack; the 

85 Id. at 800. See also, State v. MacDicken, 319 P.3d 31 (Wash. 2014) (applying 

the time of arrest rule and upholding search of a laptop bag and rolling duffel bag that 

were in the possession of the arrestee when he was stopped by law enforcement). 

86 355 P.3d 1118 (Wash. 2015).

87 Id. at 1119.

88 See Terry v. Ohio, 392 U.S. 1 (1968).

89 Brock, 355 P.3d at 1120.

90 Id. 

91 Id. 

92 Id. 
24

officer found marijuana and methamphetamine inside.93 The officer then 

walked back over to Brock, handcuffed him, and placed him in his vehicle.94 

The entire encounter, from initial contact to arrest, lasted about 10 minutes.95

The trial court denied Brock’s motion to suppress the evidence found in 

his backpack, but the Court of Appeals reversed based on its conclusion that 

“Brock did not have actual, exclusive possession of the backpack ‘immediately 

preceding’ arrest.”96 In addressing the meaning of “immediately preceding 

arrest” the Brock Court noted that, pursuant to Byrd: 

[t]he time of arrest rule reflects the practical reality that a search of 

the arrestee's “person” to remove weapons and secure evidence 

must include more than his literal person.... When police take an 

arrestee into custody, they also take possession of his clothing and 

personal effects, any of which could contain weapons and 

evidence.97

The Court therefore rejected Brock’s argument that his physical separation 

from the backpack eliminated any safety or evidence preservation concerns 

associated with the backpack because he could no longer reach it.

98 It

reasoned:

When [a] personal item is taken into custody as a part of the 

arrestee's person, the arrestee's ability to reach the item during the 

arrest and search becomes irrelevant.

93 Id. 

94 Id. 

95 Id. 

96 Id. 

97 Id. at 1121-22.

98 Id. at 1122.
25

Rather, the safety and evidence preservation exigencies that justify 

this “time of arrest” distinction stem from the safety concerns 

associated with the officer having to secure those articles of 

clothing, purses, backpacks, and even luggage, that will travel with 

the arrestee into custody. Because those items are part of the 

person, we recognize the practical reality that the officer seizes 

those items during the arrest. From that custodial authority flows 

the officer's authority to search for weapons, contraband, and 

destructible evidence.99

[...]

Although we must draw these exceptions to the warrant 

requirement narrowly, we do not draw them arbitrarily; the 

exception must track its underlying justification. Because the 

search incident to arrest rule recognizes the practicalities of 

an officer having to secure and transport personal items as 

part of the arrestee's person, we draw the line of “immediately 

preceding” with that focus. The proper inquiry is whether 

possession so immediately precedes arrest that the item is 

still functionally a part of the arrestee's person. Put simply, 

personal items that will go to jail with the arrestee are 

considered in the arrestee's “possession” and are within the 

scope of the officer's authority to search.

100

The Court held that the search of the backpack was a lawful search incident to 

Brock’s arrest, reasoning that “[o]nce the arrest process had begun, the 

passage of time prior to the arrest did not render it any less a part of Brock’s 

arrested person.”101

The Supreme Courts of Illinois and North Dakota, as well as the Texas 

Court of Criminal Appeals have adopted identical rules in determining when 

the search of a container constitutes a search of an arrestee’s person. 

99 Id. 

100 Id. at 1123 (emphasis added). 

101 Id.
26

In People v. Cregan, the Supreme Court of Illinois upheld the search of a 

laundry bag and a wheeled luggage bag.102 The arrestee was carrying both 

bags when officers stopped him, arrested him, and placed him in handcuffs.103 

The officers then searched both bags and found cocaine in one of them.104 The 

Cregan Court declined to define “‘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 arrest” as it felt it would result in “an 

unworkable rule and [produce] unpredictable results.”

105 Instead, it held that 

personal items such as cigarette packs found in pockets, wallets, 

or purses may be searched incident to arrest not because they are 

by their very nature particularly personal to the individual, but 

because they are in such close proximity to the individual at the 

time of his arrest. In these cases, the personal nature of the object 

is merely a proxy for its presence in the individual's possession. 

The true measure of whether an object, whether it is a cigarette 

pack or a suitcase, is “immediately associated” with an arrestee is 

whether he is in actual physical possession of the object at the 

time of his arrest. 

Under this test if the arrestee is, at the time of his arrest, in actual 

physical possession of a bag, it is immediately associated with the 

arrestee and is searchable, whether it is a bag of groceries being 

carried or wheeled in a “grannie cart,” a duffle bag slung over one 

shoulder, or a nylon bag being pulled behind him on wheels. The 

use to which the bag is being put—as luggage for a traveler or to 

haul dirty clothing to a laundromat—is irrelevant. The sole 

consideration is whether he is in actual physical possession of the 

object. If it is not in his actual physical possession, like the 

footlocker in Chadwick, a warrantless search may be justified on 

102 10 N.E.3d 1196 (Ill. 2014). 

103 Id. at 1198.

104 Id. at 1999.

105 Id. at 1205.
27

some other basis, but not as a search of the person incident to his 

arrest.106

Similarly, in State v. Mercier, the Supreme Court of North Dakota 

adopted the time of arrest rule and upheld the search of an arrestee’s 

backpack.107 In Mercier, police responded to an attempted robbery call and 

stopped Claude Mercier because he matched the description provided by the 

victim.108 When asked, Mercier told the officers that his identification was in 

his backpack at a house across the street.109 When an officer retrieved the 

backpack, an individual at the home told him “This is [Mercier’s].”110 When the 

officer returned with the backpack Mercier confirmed that it was his, but 

refused to let the officers search it.111 Instead, the officers allowed Mercier to 

go through the backpack slowly to retrieve his identification.112 After running 

Mercier’s identification through dispatch, the officers discovered that he had an 

active arrest warrant, arrested him, and placed him in the back of a squad 

car.113 The officers then searched the backpack and found several items that 

had been reported stolen, methamphetamine, and drug paraphernalia.114

106 Id. at 1207 (internal citations omitted). 

107 883 N.W.2d 478 (N.D. 2016). 

108 Id. at 482.

109 Id. 

110 Id. 

111 Id. 

112 Id. 

113 Id. 

114 Id.
28

The North Dakota Supreme Court upheld the trial court’s denial of 

Mercier’s motion to suppress. Citing Byrd, Brock, and Creagan, it concluded 

that whether a personal item should be considered part of an arrestee’s person 

“turns on whether the arrestee had ‘actual and exclusive possession at or 

immediately preceding the time of arrest.’”115 The court held that “Mercier had 

the backpack in his immediate possession prior to being restrained because 

the officers were allowing him to search through it to obtain his 

identification.”116 The court further noted that “[h]aving no other place to store 

it, Mercier would have had to bring the backpack along with him into 

custody.”117 It reasoned that 

[i]t 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.118

115 Id. at 490.

116 Id. at 492.

117 Id. 

118 Id. at 492-93.
29

The Court held: “[b]ecause Mercier had the backpack in his actual possession 

immediately preceding his lawful arrest, we conclude a search thereof was 

reasonable.”119

Finally, a plurality of Texas’ highest court for criminal cases has 

explicitly adopted the time of arrest rule, and the Indiana Court of Appeals has 

at least impliedly done the same. In Price v. State, the Texas Court of Appeals, 

citing and discussing Creagan, MacDicken, supra, and Mercier, held 

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.120

In State v. Crager, citing, but not discussing, Mercier, Brock, and Creagan, the 

Indiana Court of Appeals held:

The record reveals that Crager was wearing the backpack at the 

time [the officer] stopped him and initiated an arrest. [The officer]

asked Crager to place the backpack he was wearing on the ground. 

[The officer] searched the backpack at the time or very near to the 

time of Crager's arrest. We also note [the officer’s] testimony that 

he could not have left the backpack with the motorcycle because it 

was his responsibility to protect Crager's property and secure his 

possessions. We conclude that the backpack was immediately 

associated with Crager and that the search was reasonable under 

119 Id. at 493.

120 662 S.W.3d 428, 438 (Tex. Crim. App. 2020).
30

the circumstances and did not violate Crager's rights under the 

Fourth Amendment.121 

The dissent argues that the time of arrest rule provides “absolutely no 

limit to the items police can search as an extension of the arrestee’s person. 

The only safeguard is that the item must be something that the police will not 

leave at the site of the arrest.” This argument is not a fair representation of the 

rule’s requirements and is clearly contradicted by State v. Alexander.

122 

In Alexander, the Washington Court of Appeals reversed the trial court’s 

denial of Heather Alexander’s motion to suppress based on its determination 

that “the State failed to establish that Alexander had actual and exclusive 

possession of [a] backpack at or immediately preceding her arrest[.]”123 An 

officer responding to a trespassing report approached Alexander and a male 

individual, Delane Slater, while they were sitting in a field marked with “no 

trespass” signs.124 After the officer informed the pair that they were 

trespassing he conducted a record’s check on Alexander and discovered she 

had an active Department of Corrections (DOC) warrant, but Slater did not.125 

While speaking to Alexander, the officer noticed a pink backpack sitting 

directly behind Alexander which she indicated belonged to her.126 Based on 

121 113 N.E.3d 657, 663-64 (Ind. Ct. App. 2018).

122 449 P.3d 1070 (Wash. 2019). 

123 Id. at 1071.

124 Id. 

125 Id. at 1072.

126 Id.
31

Alexander’s DOC warrant, the officer placed her under arrest.127 As Slater was 

free to leave, he offered to take her backpack with him, and she indicated to 

the officer that she wanted him to take it.128 The officer would not let him take 

the backpack and stated that it would be searched incident to Alexander’s 

arrest and therefore had to remain with her.129 The officer walked Alexander 

and the backpack to his patrol vehicle and searched the backpack while it was 

on the top of the truck after placing Alexander in the back seat of the vehicle 

and found a controlled substance in it.130 

The Washington Court of Appeals held that the search of the backpack 

was not a search of Alexander’s person incident to her arrest.131 The court 

noted that unlike the facts of Byrd, MacDicken, and Brock, where the arrestee’s 

were each seen carrying or holding the container at issue, “Alexander’s 

backpack was merely sitting behind her at the time of her arrest. The State 

points to no evidence that Alexander was holding, wearing, or carrying the 

backpack at any time during her contact with [the officer].”132 Moreover, “[the 

officer] himself testified that no one had reported seeing Alexander carrying the 

127 Id. 

128 Id. 

129 Id. 

130 Id. 

131 Id. 

132 Id. at 1075.
32

backpack at an earlier time.”133 Therefore, the trial court’s findings established 

“at most, that Alexander could immediately have reduced the backpack to her 

actual possession, i.e., that Alexander had dominion and control—and thus 

constructive possession—over the backpack.”134 In addition, the State had not 

shown that the backpack was an item that would necessarily travel with 

Alexander to jail:

Slater, about whom [the officer] expressed no safety concerns, 

offered to take the backpack, and Alexander desired that Slater 

take it. Under these circumstances, Alexander's backpack was not 

an item immediately associated with her person that would 

necessarily travel to jail with her. Rather, the only reason the 

backpack traveled to jail with Alexander was because [the officer]

decided that it would. But the scope of the arrestee's person is 

determined by what must necessarily travel with an arrestee to jail, 

not what an officer decides to take to jail. 135

[...]

In short, the trial court expanded the arrestee's person to include 

any item in proximity to and owned by the arrestee if it is 

reasonable for the arresting officer to take the item to jail. But as 

discussed, the arrestee's person is limited to those items that are 

within the arrestee's actual and exclusive possession at or 

immediately preceding the time of arrest, and the State cites no 

authority for the proposition that proximity and ownership alone 

constitute actual and exclusive possession.136

We therefore disagree with the dissent’s assertion, as the time of arrest rule 

requires both that an arrestee have actual and exclusive, as opposed to 

133 Id.

134 Id. 

135 Id. at 1076.

136 Id. at 1077.
33

constructive, possession at or immediately preceding the time of arrest and

that that the item must necessarily travel with them to jail. 

One of the only courts to expressly reject the time of arrest rule is the 

Federal Court of Appeals for the Tenth Circuit in an opinion cited by the 

dissent: United States v. Knapp.

137 The Knapp Court rejected the rule based on 

its conclusion that, under Robinson, a search of an arrestee’s person can never 

include any item not found within the arrestee’s clothing:

To the extent the government suggests a construction that 

includes more than the arrestee’s immediate person, worn 

clothing, or containers concealed within her clothing, we decline to 

adopt it. . . . The better formulation, we believe, would be to limit 

Robinson to searches of an arrestee’s clothing, including containers 

concealed under or within her clothing. Accordingly, visible 

containers in an arrestee’s hand such as Ms. Knapp’s purse are 

best considered to be within the area of an arrestee’s immediate 

control — thus governed by Chimel — the search of which must be 

justified in each case.

Respectfully, we cannot agree that what constitutes an arrestee’s person 

should be limited in this manner. We again acknowledge that the U.S. 

Supreme Court has not yet spoken on the issue, which of course means there 

is no holding from that Court stating that an arrestee’s person cannot include 

loose containers carried outside an arrestee’s clothing. And several statements 

from the Court, albeit in dicta, strongly suggest that it would consider the 

search of an arrestee’s “person” to include loose containers carried outside of 

an arrestee’s clothing.

137 917 F.3d 1161 (10th Cir. 2019).
34

In addition to the excerpt from Riley quoted below, Chadwick provides 

that the search of property is no longer incident to arrest “once law 

enforcement officers have reduced luggage or other personal property not 

immediately associated with the person of the arrestee to their exclusive 

control[.]”138 This statement implies that personal property, such as luggage, 

that is immediately associated with an arrestee could be searched incident to 

arrest. Most recently, in Birchfield v. North Dakota, the Court noted that 

[o]ne 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).

No historical evidence suggests that the Fourth Amendment 

altered the permissible bounds of arrestee searches.139

Additionally, we do not believe that the Court would find an arrestee’s 

privacy interests in such containers to be significant enough that a search 

would constitute more than a minor additional intrusion in relation to the 

arrest itself. As discussed, searches of an arrestee’s “person” pursuant to his 

or her lawful arrest is an exception to the warrant requirement that does not 

require justification based on officer safety or the preservation of evidence. 

That is, unless “privacy-related concerns are weighty enough” that the search 

constitutes are more than a “minor additional [intrusion] compared to the 

substantial government authority exercised in taking [an arrestee] into 

138 Chadwick, 433 U.S. at 15 (emphasis added). 

139 579 U.S. 438, 458 (2016) (emphasis added). 
35

custody.”140 Previous instances of a search being “a substantial invasion 

beyond the arrest itself”141 were the top to bottom search of a house in Chimel

and the search of two arrestees’ cellphones in Riley. In contrast, in Maryland 

v. King, the Court held that the “the need of law enforcement officers in a safe 

and accurate way to process and identify persons and possessions taken into 

custody” outweighed an arrestee’s privacy interest in his own DNA.142

We therefore disagree with the dissent’s argument that the search of an 

unlocked backpack should be considered on par with the privacy interests in 

cases like Chimel and Riley such that an exception to the warrant requirement 

is trumped. As the U.S. Supreme Court said itself in Riley:

Robinson is the only decision from this Court applying Chimel to a 

search of the contents of an item found on an arrestee's person. In 

an earlier case, this Court had approved a search of a zipper bag 

carried by an arrestee, but the Court analyzed only the validity of 

the arrest itself. See Draper v. United States, 358 U.S. 307, 310–

311, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Lower courts applying 

Robinson and Chimel, however, have approved searches of a variety 

of personal items carried by an arrestee. See, e.g., United States v. 

Carrion, 809 F.2d 1120, 1123, 1128 (C.A.5 1987) (billfold and 

address book); United States v. Watson, 669 F.2d 1374, 1383–1384 

(C.A.11 1982) (wallet); United States v. Lee, 501 F.2d 890, 892 

(C.A.D.C.1974) (purse).

The United States asserts that a search of all data stored on a 

cell phone is “materially indistinguishable” from searches of 

these sorts of physical items. That is like saying a ride on 

horseback is materially indistinguishable from a flight to the moon. 

Both are ways of getting from point A to point B, but little else 

justifies lumping them together. Modern cell phones, as a 

category, implicate privacy concerns far beyond those 

140 Riley, 573 U.S. at 391-92.

141 Id. at 392.

142 569 U.S. 435, 438 (2013) (“The government interest is not outweighed by 

respondent's privacy interests.”). 
36

implicated by the search of a cigarette pack, a wallet, or a 

purse. A conclusion that inspecting the contents of an 

arrestee's pockets works no substantial additional intrusion on 

privacy beyond the arrest itself may make sense as applied to 

physical items, but any extension of that reasoning to digital data 

has to rest on its own bottom.143

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[.]’”

144 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 

143 Id. at 392-93 (emphasis added).

144 Chadwick, 433 U.S. at 15 (emphasis added). 
37

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 wellreasoned 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 
38

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. 

The Court of Appeals was therefore incorrect in holding that the search 

of Bembury’s backpack was an impermissible search of the area within his 

immediate control and in holding that the search was a substantial invasion of 

privacy rather than a minor additional intrusion, and we reverse. But, to 

clarify, although we hereby reinstate the circuit court’s order denying 

Bembury’s motion to suppress we do so for different reasons.145 The circuit 

court relied upon the Gant rule that allows a vehicle to be searched incident to 

arrest without a warrant “if it is reasonable to believe the vehicle contains 

evidence of the offense arrest”146 to hold that the search of Bembury’s 

backpack was lawful because the officers had such reasonable belief. But that 

holding applies exclusively to vehicle searches and not searches of an arrestee’s 

person. But, as we have explained, the search was nevertheless lawful because 

it was the search of a container that was in Bembury’s actual and exclusive 

145 See, e.g., Wells v. Commonwealth, 512 S.W.3d 720, 721–22 (Ky. 2017) (“Even 

if a lower court reaches its judgment for the wrong reason, we may affirm a correct 

result upon any ground supported by the record.”).

146 Gant, 556 U.S. at 351.
39

possession immediately preceding his arrest which would necessarily have to 

accompany him to jail. 

Because we hold that the search was a lawful search incident to 

Bembury’s arrest, we decline to address the parties’ arguments regarding the 

inevitable discovery doctrine.

III. CONCLUSION 

For the foregoing reasons, the Court of Appeals decision is hereby

reversed and the Fayette Circuit Court’s order denying Bembury’s motion to 

suppress is reinstated. 

Bisig, Conley, Keller, Lambert, Nickell and Thompson, JJ.; sitting. Bisig, 

Conley, and Nickell, JJ; concur. Nickell, J., concurs by separate opinion. 

Keller, J., dissents by separate opinion in which Thompson, J., joins. 

Thompson, J., dissents by separate opinion. VanMeter, C.J., not sitting. 

NICKELL, J., CONCURRING. While I fully concur with the majority’s 

well-reasoned opinion, I write separately to emphasize my position that 

Bembury’s use of his backpack as a public dispensary for synthetic marijuana 

obviated the requirement for a search warrant under the plain view exception. 

“The Fourth Amendment protects legitimate expectations of privacy 

rather than simply places.” Illinois v. Andreas, 463 U.S. 765, 771 (1983). 

“What a person knowingly exposes to the public, even in his own home or 

office, is not a subject of Fourth Amendment protection.” Florida v. Riley, 488 

U.S. 445, 449 (1989) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). 
40

Similarly, in Arkansas v. Sanders, 442 U.S. 753, 764 n. 13 (1979), the 

Supreme Court explained:

Not all containers and packages found by police during the course 

of a search will deserve the full protection of the Fourth 

Amendment. Thus, some containers (for example a kit of burglar 

tools or a gun case) by their very nature cannot support any 

reasonable expectation of privacy because their contents can be 

inferred from their outward appearance. Similarly, in some cases 

the contents of a package will be open to “plain view,” thereby 

obviating the need for a warrant.

“The plain view doctrine is grounded on the proposition that once police are 

lawfully in a position to observe an item first-hand, its owner’s privacy interest 

in that item is lost; the owner may retain the incidents of title and possession 

but not privacy.” Andreas, 442 U.S. at 771. In other words, “courts will allow 

a search of a container following its plain view seizure only ‘where the contents 

of a seized container are a foregone conclusion.’” United States v. Williams, 41 

F.3d 192, 197 (4th Cir. 1994). To determine “whether the contents of a 

container are a foregone conclusion, the circumstances under which an officer 

finds the container may add to the apparent nature of its contents.” Id. 

The rationale of the Andreas and Williams decisions applies equally to 

the present appeal. After the officers observed Bembury complete the drug 

transaction in full public view such that the officers were justified in effecting 

his immediate arrest, it was a foregone conclusion that the backpack used to 

facilitate the transaction contained the fruits of the same illegal activity. This 

unambiguous knowledge was based on the officers’ first-hand, 

contemporaneous observations as opposed to mere suspicion or subjective 
41

belief. Thus, the present situation is distinguishable from those where police

merely happen upon a closed container during the course of a lawful arrest or 

search. Accordingly, this Court should not countenance Bembury’s assertion 

of a legitimate expectation of privacy where, as the majority noted, he “was 

pulling illegal items out of his backpack in a public place and in the plain view 

of the officers.” 

Inasmuch as reasonableness is the touchstone for any Fourth 

Amendment analysis, “[w]hen all else is said and done, common sense must 

not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment 

Ins. Comm’n, 450 S.W.2d 235, 237 (Ky. 1970). “[R]equiring police to obtain a 

warrant once they have obtained a first-hand perception of contraband, stolen 

property or incriminating evidence generally would be a ‘needless 

inconvenience,’ . . . that might involve danger to the police and public.” Texas 

v. Brown, 460 U.S. 730, 739 (1983). In the present appeal, upon witnessing 

the public perpetration of a crime, the officers were justified to search and seize 

the instrumentality of the offense without a warrant. Therefore, I concur with 

the majority and would further hold that Bembury waived any legitimate 

expectation of privacy by opening the illegal contents of his backpack to public 

view. 

KELLER, J., DISSENTING: I agree with much of the Majority’s wellwritten Opinion. I disagree with the Majority, however, on a critical point: what 

constitutes personal property “immediately associated with the person” of the 

arrestee. As the Majority notes, this is a question that the Supreme Court of 
42

the United States has yet to answer but that we are directly confronted with 

today. Federal circuit courts of appeals as well as state courts that have 

addressed this issue are split. We now have, not only an opportunity, but an 

obligation to weigh in on this important issue. In doing so, we are reminded 

that “the right of privacy [is] one of the unique values of our civilization” and 

must be protected as such. McDonald v. United States, 335 U.S. 451, 453 

(1948).

To make this determination, I believe that we must undertake the 

balancing test described in Riley v. California, 573 U.S. 373, 385 (2014) 

(quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). On the one hand, we 

must weigh the governmental interests at stake, as informed by the 

justifications for the search incident to arrest exception to the warrant 

requirement as described in Chimel v. California, 395 U.S. 752, 762–63 (1969). 

On the other hand, we must weigh the individual’s privacy interests. I believe 

that in the situation before us, the individual’s privacy interest outweighs the 

governmental interest in searching personal property without a warrant.

Relying on decisions from several other state courts, the Majority, 

however, sets forth the following rule: “[T]o be considered part of an arrestee’s 

person, a container must be in the arrestee’s actual and exclusive possession . 

. . at or immediately preceding the time of arrest such that the item must 

necessarily accompany the arrestee into custody.” As State v. Mercier explains, 

“[p]ut simply, personal items that will go to jail with the arrestee are considered 

in the arrestee’s ‘possession’ and are within the scope of the officer’s authority 
43

to search.” 883 N.W.2d 478, 491 (N.D. 2016) (quoting State v. Brock, 355 P.3d

1118, 1123 (Wash. 2015)). The Mercier court justified extending the search of 

an arrestee’s person to the items that will go to jail with him by explaining,

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.

Id. at 492–93. 

At first glance, this reasoning appears sound; however, upon closer 

inspection, it falls apart. This rule and its corresponding justification provide 

absolutely no limit to the types of items police can search as an extension of an 

arrestee’s person. The Majority seems to admit as much. The only safeguard is 

that the item must be something that is in the arrestee’s possession and that

the police will not leave at the site of the arrest. I do not see why the 200-

pound, double-locked footlocker at issue in United States v. Chadwick would 

not fall within this rule, had police stopped the arrestees before they reached 

the car in which they placed the footlocker. 433 U.S. 1 (1977), abrogated on 

other grounds by California v. Acevedo, 500 U.S. 565 (1991). The footlocker was 

in the possession of the arrestees, and police would not have left it in the 

middle of a train station parking lot. Thus, it would have been subject to 

search under the Majority’s rule as an extension of the person of the arrestees

despite the clear “manifest[ation of] an expectation that the contents would 

remain free from public examination.” Id. at 11. Even though “one who 
44

safeguards his personal possessions in this manner is due the protection of the 

Fourth Amendment Warrant clause” “[n]o less than one who locks the doors of 

his home against intruders,” a double-locked footlocker would be subject to a 

warrantless search if it was in the arrestee’s actual possession at or 

immediately preceding his arrest. Id. This cannot be what the United States 

Supreme Court intended when it set forth the search incident to arrest 

exception to the warrant requirement. 

The state courts cited by the Majority, as well as the Majority itself in this 

case, all fail to undertake the balancing test as required by Riley v. California, 

573 U.S. at 385. Under that test, we must weigh “‘on the one hand, the degree 

to which [a search] intrudes upon an individual’s privacy and, on the other, the 

degree to which it is needed for the promotion of legitimate governmental 

interests.’” Id. (quoting Houghton, 526 U.S. at 300). For the reasons set forth 

below, I believe that a weighing of these interests results in the necessity of 

obtaining a warrant in a case such as the one at bar. I further note, as will be 

more fully addressed below, that the existence of probable cause to search 

an item does not eliminate the warrant requirement.

I believe that to answer the critical question of what is personal property 

immediately associated with the person, we must look to the original 

justifications underlying the search of a person incident to his or her arrest. 

The Supreme Court of the United States explained,

When an arrest is made, it is reasonable for the arresting officer to 

search the person arrested in order to remove any weapons that 

the latter might seek to use in order to resist arrest or effect his 

escape. Otherwise, the officer’s safety might well be endangered, 
45

and the arrest itself frustrated. In addition, it is entirely reasonable 

for the arresting officer to search for and seize any evidence on the 

arrestee’s person in order to prevent its concealment or 

destruction.

Chimel, 395 U.S. at 762–63. Thus, “[t]he rule allowing contemporaneous 

searches is justified . . . by the need to seize weapons and other things which 

might be used to assault an officer or effect an escape, as well as by the need to 

prevent the destruction of evidence of the crime.” Id. at 764 (quoting Preston v. 

United States, 376 U.S. 364, 367 (1964)). More recently, the Supreme Court 

has acknowledged that “[i]f 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.” Arizona v. Gant, 556 U.S. 332, 339 (2009) (citation omitted).

In evaluating how these justifications apply, I am cognizant of the fact 

that the United States Supreme Court has rejected a case-by-case evaluation of 

the application of the search of the person incident to his arrest exception to 

the warrant requirement in favor of a categorical approach. That Court has 

explained,

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. It is the fact of the lawful arrest which establishes the 

authority to search, and we hold that in the case of a lawful 

custodial arrest a full search of the person is not only an exception 

to the warrant requirement of the Fourth Amendment, but is also a 

‘reasonable’ search under that Amendment.
46

United States v. Robinson, 414 U.S. 218, 235 (1973). Thus, the lawfulness of a 

search incident to arrest of the person of the arrestee does not depend on the 

reasonableness of a particular search under particular circumstances but 

instead depends on whether the category of thing to be searched (such as the 

clothes the arrestee is wearing or the backpack he is carrying) is exempt from 

the warrant requirement. 

With this in mind, I must determine whether these justifications apply to 

a backpack (or, based on the Majority rule, any container, regardless of size, 

weight, or whether it is locked) that is in the actual possession of an arrestee at 

the time of, or immediately preceding, his arrest. After a thorough review of the 

law, I do not believe they do. I believe that to apply “the search incident to 

arrest doctrine to this particular category of effects would ‘untether the rule 

from the justifications underlying the Chimel exception.’” Riley, 573 U.S. at

386–87 (quoting Gant, 556 U.S. at 343).

In order to determine whether Chimel’s justifications for a search 

incident to arrest apply to a backpack and thus exempt a search of the 

backpack from the warrant requirement, we must undertake the balancing test 

required by Riley. 573 U.S. 373. In doing so, we weigh “‘on the one hand, the 

degree to which [the search] intrudes upon an individual’s privacy and, on the 

other, the degree to which it is needed for the promotion of legitimate 

governmental interests.’” Id. at 385 (quoting Houghton, 526 U.S. at 300). “On 

the government interest side, Robinson concluded that the two risks identified 
47

in Chimel—harm to officers and destruction of evidence—are present in all 

custodial arrests.” Id. at 386. With this premise, I agree. However, Robinson

also quoted with approval then-Judge Cardozo’s account of the 

historical basis for the search incident to arrest exception: “Search 

of the person becomes lawful when grounds for arrest and 

accusation have been discovered, and the law is in the act of 

subjecting the body of the accused to its physical dominion.”

Id. at 391–92 (emphasis added) (quoting Robinson, 414 U.S. at 232 (quoting 

People v. Chiagles, 142 N.E. 583, 584 (N.Y. 1923))).

The gravity of the governmental interests at stake in a search incident to 

arrest is tied closely to the height of the risks of harm to officers and 

destruction of evidence which justify the exception to the warrant requirement. 

Integral to my opinion that a backpack is not an item immediately associated 

with the person of an arrestee is the fact that a backpack can easily be 

separated from the person of the arrestee without degradation in a way that 

clothing cannot. As the Tenth Circuit Court of Appeals explained, “Because of 

an arrestee’s ability to always access weapons concealed in her clothing or 

pockets, an officer must necessarily search those areas because it would be 

impractical (not to mention demeaning) to separate the arrestee from her 

clothing.” United States v. Knapp, 917 F.3d 1161, 1166–67 (10th Cir. 2019)

(citing United States v. Edwards, 415 U.S. 800, 803 (1974)). Conversely, once a 

backpack is separated from the person of the arrestee, “there is no longer any 

danger that the arrestee might gain access to the property to seize a weapon or 

destroy evidence.” Chadwick, 433 U.S. at 15. Thus, the justifications of the 
48

search incident to arrest exception to the warrant requirement no longer apply, 

and the governmental interests at stake are low. 

On the individual privacy side of the equation lies the fact that “any 

privacy interests retained by an individual after arrest [are] significantly 

diminished by the fact of the arrest itself.” Riley, 573 U.S. at 386. However, 

“[t]he fact that an arrestee has diminished privacy interests does not mean that 

the Fourth Amendment falls out of the picture entirely . . . . [W]hen ‘privacyrelated concerns are weighty enough’ a ‘search may require a warrant, 

notwithstanding the diminished expectations of privacy of the arrestee.’” Id. at 

392 (quoting Maryland v. King, 569 U.S. 435, 463 (2013)).

I assert that the privacy interests are much higher in the contents of a 

backpack than they are in the contents of the pockets of an arrestee’s clothing 

when he is taken into custody. Like the contents of luggage, the contents of a 

backpack “are not open to public view,” and backpacks are “intended as a 

repository of personal effects.” Chadwick, 433 U.S. at 13. People carry all kinds 

of personal items in their backpacks of which they do not intend the public to 

have knowledge and to which they do not intend the public to have access. 

These items could include things as personal as journals containing a person’s 

innermost convictions, medications indicating one’s physical health history or 

even mental health diagnoses, hygiene products, or checkbooks and other 

financial records evincing one’s political, religious, and other personal 

affiliations. The possibilities are limitless, because, under the Majority’s rule, 

the size or type of container does not matter. By placing items in an opaque, 
49

zipped-up backpack, individuals have a reasonable expectation that those 

items will remain private.

After weighing the governmental interest against an individual’s privacy 

interest, it is clear to me that the individual’s privacy interest is more 

significant. Additionally, as the United States Supreme Court held in 

Chadwick, “[W]hen 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. at 15. 

As the Tenth Circuit concluded, “[A] holding to the contrary would erode the 

distinction between the arrestee’s person and the area within her immediate 

control.” Knapp, 917 F.3d at 1167. Therefore, I would hold that a backpack is 

not personal property immediately associated with the person of the arrestee 

such that police could search it without a warrant. Accordingly, I would affirm 

the Court of Appeals.

The police in this case could have and should have obtained a warrant to 

search Bembury’s backpack. They certainly had probable cause to do so, but 

the existence of probable cause does not eliminate the warrant requirement. 

We must remember “that the warrant requirement is ‘an important working 

part of our machinery of government,’ not merely ‘an inconvenience to be 

somehow “weighed” against the claims of police efficiency.’” Riley, 573 U.S. at 

401 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971)). As the 

Supreme Court explained in Johnson v. United States, 
50

The point of the Fourth Amendment . . . is not that it denies law 

enforcement the support of the usual inferences which reasonable 

men draw from evidence. Its protection consists in requiring that 

those inferences be drawn by a neutral and detached magistrate 

instead of being judged by the officer engaged in the often 

competitive enterprise of ferreting out crime . . . . When the right of 

privacy must reasonably yield to the right of search is, as a rule, to 

be decided by a judicial officer, not by a policeman or Government 

enforcement agent.

333 U.S. 10, 13–14 (1948) (emphasis added) (footnote omitted).

I note that if the police had reason to believe an exigency existed that

justified an immediate, warrantless search of the backpack, they could have 

conducted such a search. However, whether an exigency exists must be 

determined on a case-by-case basis and not through a categorical exception to 

the warrant requirement. See Riley, 573 U.S. at 388 (“To the extent dangers to 

arresting officers may be implicated in a particular way in a particular case, 

they are better addressed through consideration of case-specific exceptions to 

the warrant requirement, such as the one for exigent circumstances.” (citation 

omitted)). In this case, the Commonwealth did not argue that any exigency 

existed to justify the warrantless search of Bembury’s backpack, and there was 

no testimony regarding any exigency.

Finally, I note that it is more likely than not that Bembury’s backpack 

would have been searched and the content inventoried upon his booking into 

the local jail. During this search, the evidence at issue would have been 

discovered, implicating the inevitable discovery exception to the exclusionary 

rule. However, this record is completely void of any of the aforementioned 
51

testimony, and therefore, I cannot hold that the evidence would have been 

inevitably discovered. 

Thompson, J., joins.

Thompson, J., DISSENTING. I respectfully dissent from the majority’s 

wholesale repeal of all reasonable limits on warrantless baggage searches 

incident to arrest and urge a return to the standards elucidated in Chimel v.

California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 2d. 685 (1969), and Arizona

v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 1719, 173 L. Ed. 2d 485 (2009), which 

prohibit searches of containers that are no longer accessible to arrestees.

Bembury was arrested for the sale of a $5.00 cigarette which officers 

could only assume contained synthetic marijuana. After he was arrested, 

handcuffed, and placed in the back of a police car, officers searched his 

backpack and found a small quantity of what they again suspected was 

synthetic marijuana, some cigarette rolling papers, a total of seven one-dollar 

bills, and his life’s possessions. Bembury entered a plea of guilty to a charge of 

possession of synthetic drugs, second offense, and received a sentence of two 

years and one day – all for a five-dollar transaction. 

The warrantless search of Bembury’s backpack constituted an unlawful 

search under the Fourth Amendment of the United States Constitution and 

Section Ten of Kentucky’s Constitution. The majority’s opinion is a clear 

departure not only from precedent but from the tide of jurisprudence which 

seeks to ensure the same rights from intrusive government action for the 

impoverished as it does the wealthy who are more financially able to secure 
52

their personal effects. A warrant could have, and should have, been acquired 

prior this search. 

The Fourth Amendment guarantees “[t]he right of the people to be secure 

in their persons, houses, papers, and effects, against unreasonable searches 

and seizures.” U.S. Const. amend. IV. Its “ultimate touchstone . . . is 

‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 

164 L.Ed.2d 650 (2006). “In the absence of a warrant, a search is reasonable 

only if it falls within a specific exception to the warrant requirement.” Riley v.

California, 573 U.S. 373, 381–82, 134 S. Ct. 2473, 2482, 189 L. Ed. 2d 430 

(2014).

All citizens clearly have an interest in the privacy of the contents of their

luggage, briefcases, handbags or any other containers that conceal private 

papers and effects from public scrutiny. The majority opinion upholds the 

search of Bembury’s backpack as reasonable as part of his search incident to 

arrest. The United States Supreme Court has clearly set forth the limits of the 

search-incident-to-arrest exception, emphasizing that it is “reasonable” for 

arresting officers to search the person being arrested and only the area within 

his reach (1) “in order to remove any weapons that the [arrestee] might seek to 

use in order to resist arrest or effect his escape” and (2) “in order to prevent 

[the] concealment or destruction” of evidence. Chimel, 395 U.S. at 763, 89 S.Ct.

at 2040. The Court also concluded the area “within [arrestee’s] immediate 

control,” only meant the area from within which he might gain possession of a 

weapon or destructible evidence.” Id. at 763. 
53

In Gant, 556 U.S. at 343, 129 S. Ct. at 1719, the United States Supreme 

Court upheld the continued importance of Chimel prohibiting any search 

incident to arrest of an area beyond the arrestee’s immediate control, holding 

that “the Chimel rationale authorizes police to search a vehicle incident to a 

recent occupant’s arrest only when the arrestee is unsecured and within 

reaching distance of the passenger compartment at the time of the search.”147

In United States v. Davis, 997 F.3d 191, 198 (4th Cir. 2021), the Fourth 

Circuit had to decide whether a backpack was properly searched incident to 

arrest. Davis had fled from police on foot while carrying his backpack but 

dropped it just before he lay down and surrendered. His backpack was not 

searched until he was already under arrest, handcuffed with his hands behind 

his back, and lying on his stomach. The Court ruled that the warrantless 

search of the backpack was not justified as a search incident-to-arrest under 

the Fourth Amendment because the arrestee could not access his backpack at 

the time of the search. Davis, 997 F.3d at 197-98. 

Similarly, in United States v. Knapp, 917 F.3d 1161 (10th Cir. 2019), the 

Court determined that a search of a purse carried by arrestee at time of her 

arrest does not qualify as search of the arrestee’s person incident-to-arrest for 

147 Gant contains a second holding for which it is more commonly cited, that 

“circumstances unique to the vehicle context justify a search incident to a lawful 

arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might 

be found in the vehicle.’” 556 U.S. at 343, 129 S. Ct. at 1719 (quoting Thornton v.

United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 2137, 158 L.Ed.2d 905 (2004)

(Scalia, J., concurring in judgment)).
54

Fourth Amendment purposes since, being under arrest and restrained, the 

purse was no longer in “an area within her immediate control,” stating that, 

“[t]o the extent the government suggests a construction that includes more 

than the arrestee’s immediate person, worn clothing, or containers concealed 

within her clothing, we decline to adopt it.” Id. at 1167. 

I agree with the reasoning in Davis and Knapp as being an accurate 

interpretation of what our Constitution requires. Once separated from his 

backpack by the officers, I cannot agree with the legal fiction that the backpack 

remained a part of Bembury’s “person” subject to search without a warrant. 

Without the justification of a search incident to arrest, there is no 

acceptable basis for searching Bembury’s backpack. At the time of the search, 

Bembury had been arrested, handcuffed and was in custody in the back of a 

police car. Any exigency had vanished by that time. Further, no contraband 

was in plain sight; all subsequently discovered evidence being secured inside 

the backpack. Here, Bembury’s backpack could certainly be seized incident to 

arrest but not searched, without a warrant. 

While this discussion would apply to all citizens equally, I am especially 

cognizant that there are some people who, as a result of circumstances, are 

compelled to carry all their physical belongings along with them and the 

conveyances in which they transport such items are indeed “repositories of 

personal effects.”148 Such persons do not have the luxury of fences, doors, and 

148 The record is not entirely clear as to whether Bembury was homeless or 

simply had limited means.
55

locks found in traditional residences wherein they can secure their possessions 

and are dependent upon suitcases, backpacks, grocery carts and even garbage 

bags to secure their personalty. For these citizens, such possessions may 

contain all “the privacies of life” which for another citizen might be stored in a 

house. Riley, 573 U.S. at 403, 134 S. Ct. at 2494-95 (quoting Boyd v. United

States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886)). Our protections 

against warrantless searches are not supposed to end at the doorstep of a 

home. I assert that our most vulnerable are the most deserving of protection 

from unconstitutional intrusion. 

Accordingly, I would affirm the Court of Appeals’ determination that the 

warrantless search of Bembury’s backpack was impermissible and the evidence 

obtained therefrom should have been suppressed. 

COUNSEL FOR APPELLANT:

Daniel J. Cameron 

Attorney General of Kentucky 

Mathew Robert Krygiel 

Assistant Attorney General 

Lou Anna Red Corn

Assistant Commonwealth Attorney 

COUNSEL FOR APPELLEE:

Aaron Reed Baker 

Assistant Public Advocate

Department of Public Advocacy 

Kathleen Kallaher Schmidt 

Assistant Public Advocate 

Department of Public Advocacy