Washington Law Review

Article

The "Time of Arrest" Rule: How the Washington State Supreme Court Untethered Its Search Incident to Arrest Jurisprudence from the Exception's Underlying Rationales

| 93 Wash. L. Rev. Online 27

Abstract: The search incident to arrest exception is based on two exigencies: officer safety and evidence preservation. In searches incident to arrest of an arrestee’s person, these exigencies are presumed. Recently, the Washington State Supreme Court extended this presumption to all items carried by an arrestee at the time of arrest, regardless of whether the arrestee can access such items at the time of the search. I argue that this extension untethers the search incident to arrest doctrine from its underlying rationales and focuses too heavily on the practical issue of transporting an arrestee’s belongings to the station post-arrest. In doing so, the Court fails to uphold the Fourth Amendment and the more robust protection of individual rights offered by article I, section 7 of the Washington Constitution. Going forward, the Court should realign its search incident to arrest jurisprudence with the exception’s established justifications so that the constitutional rights of Washingtonians are properly protected.

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