¶25 (dissenting) — In State v. Byrd, 178 Wn.2d 611, 623, 310 P.3d 793 (2013), this court held that law enforcement must constrain their search of an arrestee’s person, incident to arrest, to only “those personal articles in the arrestee’s actual and exclusive possession at or immediately preceding the time of arrest.” This case requires us to interpret the phrase “immediately preceding the time of arrest” in order to determine the scope of the search incident to arrest exception to the warrant requirement.
¶26 The majority holds that the exception authorizes the search of a backpack that the arresting officer reduced to his exclusive possession and control several minutes before he initiated any custodial arrest. Because this holding is inconsistent with the principles underlying the narrow search incident to arrest exception, I respectfully dissent.
*160¶27 Under article I, section 7 of the Washington State Constitution, a warrantless search is per se unreasonable, subject to a few “carefully drawn and jealously guarded exceptions to the warrant requirement.” State v. Bravo Ortega, 177 Wn.2d 116, 122, 297 P.3d 57 (2013) (citing State v. Afana, 169 Wn.2d 169, 176-77, 233 P.3d 879 (2010); State v. Patton, 167 Wn.2d 379, 386, 219 P.3d 651 (2009)). The search incident to arrest is one such exception. Byrd, 178 Wn.2d at 616.
¶28 In Byrd, this court reasoned that the search incident to arrest exception encompassed two distinct applications: a search of the area within the control of the arrestee and a search of the arrestee’s person. Id. at 617 (quoting United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)). The Byrd court recognized that searches of an area incident to arrest must be supported by concerns that the arrestee could endanger officer safety or destroy evidence. Id. (citing Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)). But it held that searches of an arrestee’s person require nothing more than a valid custodial arrest and that risks to officer safety and evidence preservation are presumed when an officer searches an arrestee’s “person.” Id. at 619-20 (citing Robinson, 414 U.S. at 224).
¶29 To determine whether an article is considered part of an arrestee’s person and thus per se searchable incident to arrest, this court applies the “time of arrest” rule. Byrd, 178 Wn.2d at 620-21. According to this rule, “an article is ‘immediately associated’ with the arrestee’s person, and can [therefore] be searched under Robinson,” if it is a “personal article [ ] in the arrestee’s actual and exclusive possession at or immediately preceding the time of arrest.” Id. at 621, 623 (emphasis added).
¶30 In this case, the majority cites two justifications for the “time of arrest” rule, both of which the majority sees as reasons to approve the search at issue here. First,. the majority argues that under Robinson, 414 U.S. at 224, a custodial arrest so diminishes the arrestee’s expectations of *161privacy that the arrest itself—absent any specifically articulated safety or evidence preservation concerns—“provides the constitutional authority of law justifying the search.” Majority at 155. Second, the majority argues that safety and evidence preservation concerns are always associated with any item that an officer must transport with the arrestee to the jail. Id. Neither of these arguments persuades me that we should expand our “time of arrest” rule to encompass the search at issue in this case.
¶31 The majority’s second argument—that an object always poses a danger when it must be transported to the jail—stems from a misreading of the United States Supreme Court’s decision in United States v. Edwards, 415 U.S. 800, 806, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974). In Byrd, the majority cited Edwards for the proposition that “[w]hen police take an arrestee into custody, they also take possession of his clothing and personal effects, any of which could contain [a] weapon[ ].” 178 Wn.2d at 621 (citing Edwards, 415 U.S. at 806). In this case, the majority cites that part of Byrd for the proposition that “there are presumptive safety and evidence preservation concerns associated with . . . items . . . [that] will . . . travel with the arrestee to jail.” Majority at 155 (quoting Byrd, 178 Wn.2d at 621). But Edwards was not a search incident to arrest case. On the contrary, Edwards held that law enforcement could search an arrestee’s belongings several hours after they were transported to the place of detention. 415 U.S. at 801 (“The question here is whether the Fourth Amendment [to the United States Constitution] should be extended to exclude from evidence certain clothing taken from respondent Edwards while he was in custody at the city jail approximately 10 hours after his arrest.” (emphasis added)). In fact, Edwards contradicts rather than supports the assertion that it is inherently dangerous to transport items before they are searched.
¶32 The majority’s other justification for the “time of arrest rule”—the diminution of the arrestee’s privacy ex*162pectations—stems from this court’s exceedingly broad interpretation of Robinson. As I explained in my dissent to State v. MacDicken, the same presumptions govern a search under Chimel and a search under Robinson: the presumptions that an arrestee may be armed and may destroy evidence. 179 Wn.2d 936, 945, 319 P.3d 31 (2014). Robinson held that these presumptions apply in every custodial arrest, even where it is highly unlikely that the arrestee in fact possesses either arms or destructible evidence. Id. at 945; Riley v. California, _ U.S. _, 134 S. Ct. 2473, 2483-84, 189 L. Ed. 2d 430 (2014). Thus, under Robinson, officers may presume that a particular arrestee—even one arrested for a nonviolent traffic offense—is armed. 414 U.S. at 235. But officers may not presume that this arrestee can access items safely reduced to law enforcement’s exclusive possession and control—that is an entirely different presumption, one which the Supreme Court has never approved. See United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) (“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.”), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991)).
¶33 It is true that some courts have applied Robinson to searches of personal items larger than the crumpled cigarette package at issue in that case—for example, to the “billfold and address book[,] . . . wallet [,] . . . [and] purse” recently noted by the United States Supreme Court in Riley—when these items were “carried by [the] arrestee.” 134 S. Ct. at 2488 (emphasis added) (citing United States v. Carrion, 809 F.2d 1120, 1123, 1128 (5th Cir. 1987); United States v. Watson, 669 F.2d 1374, 1383-84 (11th Cir. 1982); United States v. Lee, 163 U.S. App. D.C. 330, 501 F.2d 890, *163892 (1974)). But the Supreme Court has always described Robinson searches—that is, searches of the person incident to arrest—in extremely narrow terms. E.g., id. at 2489 (describing Robinson as permitting a search “of an arrestee’s pockets” and leaving open the question of what other “physical items” might be searchable under this exception). And it has always described those searches as “ ‘based upon the need to disarm and to discover evidence,’ ” even as it has explained that the validity of a Robinson search “ ‘does not depend on . . . the probability in a particular arrest situation that weapons or evidence would in fact he found.’ ” Id. at 2483 (quoting Robinson, 414 U.S. at 235).
¶34 This court, by contrast, has incrementally expanded the search incident to arrest exception—in one line of cases6—so that it no longer bears any logical relationship to the safety and evidence preservation concerns that underlie both Robinson and Chimel. In Byrd, the majority concluded that the defendant’s purse was an extension of her person, even after officers had reduced the purse to their exclusive possession and control, solely because “[t]he purse left Byrd’s hands only after her arrest.” 178 Wn.2d at 623-24. Subsequently, in MacDicken, this court reasoned that arresting officers could search the defendant’s laptop bag and rolling duffel bag, both of which were least a car’s length away from the defendant when officers began the search, because the defendant was holding the bags when the officers initiated the arrest. 179 Wn.2d at 939. In the present case, the majority holds that an officer may search a backpack that he reduced to his exclusive possession and control several minutes before he initiated the arrest.7 Majority at 152-53. Although the backpack posed no con*164ceivable risk to officer safety or evidence preservation, the majority holds that the search was proper because, under Robinson, exigencies are presumed. Id. at 154, 159.
¶35 In addition to misunderstanding the presumption approved in Robinson, this holding is contrary to two principles governing the search incident to arrest exception.
¶36 The first principle is that “the proper scope of the time of arrest rule is narrow ... [because a search incident to arrest is a] ‘jealously guarded’ exception to the warrant requirement.” Byrd, 178 Wn.2d at 623 (emphasis added) (citing Bravo Ortega, 177 Wn.2d at 122). Thus, we have explained that under article I, section 7 (as opposed to the Fourth Amendment), “when a search can be delayed to obtain a warrant without running afoul of [officer safety and evidence preservation] concerns ..., the warrant must be obtained” State v. Valdez, 167 Wn.2d 761, 777, 224 P.3d 751 (2009) (emphasis added). Because exigencies are presumed in a search incident to arrest, the exception already amounts to a departure from this court’s general disap*165proval of searches lacking individualized suspicion.8 Nevertheless, this court’s recent cases on the exception have eschewed any conceivable limiting principle.9
¶37 The second principle is that a warrantless search incident to arrest is permissible under Robinson only where “ ‘the degree to which it intrudes upon an individual’s privacy [is outweighed by] . . . the degree to which it is needed for the promotion of legitimate governmental interests' ” Riley, 134 S. Ct. at 2484 (emphasis added) (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999)). As the United States Supreme Court recently explained, “[This] balancing of interests supported the [limited] search incident to arrest exception in Robinson” id,., but “[n]ot every search‘is acceptable solely because a person is in custody,’ ” id. at 2488 (quoting Maryland v. King, _U.S._, 133 S. Ct. 1958, 1979, 186 L. Ed. 2d 1 (2013)). Instead, “when ‘privacy-related concerns are weighty enough’ a ‘search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.’ ” Id. (quoting King, 133 S. Ct. at 1979).10 In *166today’s holding, the majority declines to perform any balancing at all, opting instead for “a mechanical application of Robinson,” id. at 2484. It thereby avoids the question of whether there was any possibility, during either search, that Brock could have accessed the backpack. When there is no such possibility, and where there is no showing that transporting the bag poses any risk to officer safety, the search does not serve any “ ‘legitimate governmental interests,’ ” id. (quoting Houghton, 526 U.S. at 300), and the balance tips in favor of privacy.
¶38 In this case, the arresting officer did not articulate any safety or evidence preservation concerns to justify either search of Brock’s backpack. Clerk’s Papers at 63 (trial court’s findings of fact and conclusions of law) (“the backpack was not within the defendant’s reach; it was in the control of the officer and the officer articulated neither an officer safety reason for searching the backpack nor an evidence destruction justification for doing so”). Indeed, Officer Olson specifically testified that when he performed the first search of the backpack, Brock was too far away to access it. And when Officer Olson conducted the second search, Brock was confined to “a Plastiglas cage [sic] inside [the officer’s] patrol vehicle.” Verbatim Report of Proceedings (June 14, 2011) at 7. After listening to all the testimony, the trial court concluded that “[t]he officer clearly believed he could search the backpack because the defendant was under arrest, period.” Id. at 10.
¶39 Because the majority embraces this expansive view of the search incident to arrest exception—the view that an officer may search an arrestee’s personal effects “because the [arrestee] was under arrest, period”—I respectfully dissent. In keeping with the narrow scope of the search inci*167dent to arrest exception, I would construe the phrase “at or immediately preceding the time of arrest,” Byrd, 178 Wn.2d at 623, to encompass only those personal items that the arrestee possessed and controlled between the initiation and conclusion of a full custodial arrest.
¶40 Not all arrests are resolved instantaneously, as in State v. Smith, where a police officer chased after and tackled the defendant before she could arrest him. 119 Wn.2d 675, 677, 835 P.2d 1025 (1992); see State v. Patton, 167 Wn.2d 379, 384-85, 388, 219 P.3d 351 (2009) (finding that the defendant was under arrest from the moment that law enforcement announced their intent to arrest him, even though defendant fled from law enforcement and was therefore not immediately secured in custody). After the officer arrested the defendant in Smith, she collected and searched a fanny pack that had fallen from the defendant’s body during the struggle. 119 Wn.2d at 677. This court reasoned that the defendant “was in actual physical possession of the fanny pack just prior to the arrest” and held that the pack was therefore validly searched incident to arrest. Id. at 682. Under the rule I would adopt in today’s case, the search of the fanny pack in Smith would be a lawful search incident to arrest because the defendant actually possessed the pack when the arrest was initiated, even though he lost possession while he attempted to evade the arresting officer. Id. All of the searches in the cases cited by the majority would be upheld as proper searches incident to arrest under my proposed rule.11
¶41 Rather than adopting this narrow rule, the majority holds that officers may conduct a warrantless search of any *168item seized from an arrestee during a Terry12 stop that matures into a full custodial arrest. Majority at 159. In other words, the majority interprets the phrase “at or immediately preceding the time of arrest,” Byrd, 178 Wn.2d at 623, to mean “at or immediately preceding the time of a Terry stop that ripens into an arrest.” In essence, it announces a new exception to the warrant requirement: the search incident to a Terry stop.
¶42 This holding ignores the strict limitations imposed on law enforcement during a Terry stop,13 confuses the justifications for a Terry frisk with the justifications for a search incident to arrest,14 and conflicts with our precedent holding that a full custodial arrest is a prerequisite to any search incident to arrest.15 I fear the majority’s new rule will invite only further expansions of our “narrow” and *169“ ‘jealously guarded’ exception to the warrant requirement.” Byrd, 178 Wn.2d at 623 (quoting Bravo Ortega, 177 Wn.2d at 122).
¶43 For these reasons, I respectfully dissent.
This court has taken the opposite approach in recent cases addressing vehicle searches incident to arrest. See discussion of State v. Valdez, 167 Wn.2d 761, 224 P.3d 751 (2009), infra pp. 165 note 9.
For purposes of this analysis, I assume that Brock was under arrest when Officer Olson (1) read him his Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) warnings but (2) did not place him in handcuffs and (3) told *164him that he was not necessarily going to jail. See majority at 152. But I note that it is questionable whether this detention actually rose to the level of a full custodial arrest. See State v. Rivard, 131 Wn.2d 63, 76, 929 P.2d 413 (1997) (finding no arrest occurred where defendant was asked to not leave but was “not physically apprehended, restrained, handcuffed, placed in the police vehicle, [ ]or driven to the police station”). A custodial arrest is a prerequisite to any search incident to arrest. State v. O’Neill, 148 Wn.2d 564, 585, 62 P.3d 489 (2003) (“probable cause for a custodial arrest is not enough!;] [t]here must be an actual custodial arrest to provide the ‘authority’ of law justifying a warrantless search incident to arrest under article I, section 7”). Thus, for purposes of the search incident to arrest exception, the earliest possible “time of arrest” in this case was the moment at which Officer Olson read Brock his Miranda rights.
In most of its analysis, the majority appears to agree. See majority at 151 (“After a period of questioning, the officer arrested Brock and then searched the backpack”), 154 (“because Brock was separated from his backpack several minutes prior to arrest, the issue involves the scope of ‘immediately preceding arrest’ ”). But the majority also refers to something it calls “[t]he arrest process” and asserts that this process “began the moment Officer Olson told Brock that although he was not under arrest, he was also not free to leave.” Id. at 159 (emphasis added). To the extent that the majority thereby implies that a custodial arrest is not a prerequisite to a search incident to arrest, this is contrary to established precedent. O’Neill, 148 Wn.2d at 586-87.
See State v. Jorden, 160 Wn.2d 121, 127, 156 P.3d 893 (2007) (“[T]his court has consistently expressed displeasure with random and suspicionless searches ....”); City of Seattle v. Mesiani, 110 Wn.2d 454, 458 n.1, 755 P.2d 775 (1988) (holding a random sobriety checkpoint program invalid under article I, section 7 because it lacked individualized suspicion).
This is particularly troubling in light of the fact that this court has repeatedly cautioned against the incremental expansion of exceptions to the warrant requirement, lest the exceptions “swallow what our constitution enshrines.” State v. Day, 161 Wn.2d 889, 894, 168 P.3d 1265 (2007); see, e.g., State v. Tibbles, 169 Wn.2d 364, 372, 236 P.3d 885 (2010); State v. Garvin, 166 Wn.2d 242, 255, 207 P.3d 1266 (2009). In Valdez, this court acknowledged that the search incident to arrest exception has been particularly susceptible to judicial expansion. 167 Wn.2d at 773-74. In the context of a vehicle search, Valdez expressly rejected a justification similar to the one embraced by the majority in this case: that the fact of a custodial arrest itself justifies a search in all cases. Id. at 777 (citing State v. Stroud, 106 Wn.2d 144, 175, 720 P.2d 436 (1986) (Durham, J., concurring)).
Thus, for example, law enforcement must obtain a warrant to search luggage seized incident to arrest when that luggage poses no conceivable danger to officer safety or evidence preservation. Chadwick, 433 U.S. at 15-16; see also Riley, 134 S. Ct. at 2485 (cell phones generally not subject to search incident to arrest since privacy interest in cell phone’s contents outweighs government’s interest in searching phone incident to arrest); Illinois v. Lafayette, 462 U.S. 640, 645, 103 S. *166Ct. 2605, 77 L. Ed. 2d 65 (1983) (reasoning that “the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on the street... ”); Chimel, 395 U.S. at 766 n.12 (“[W]e can see no reason why, simply because some interference with an individual’s privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require.”).
MacDicken, 179 Wn.2d at 942 (items searched were in defendant’s possession at the time that officers initiated the arrest); Byrd, 178 Wn.2d at 614 (defendant’s purse was in her lap at the time she was arrested); State v. Ellison, 172 Wn. App. 710, 718, 291 P.3d 921 (2013) (defendant was in “possession and control” of a backpack at his feet at the time of his arrest), review denied, 180 Wn.2d 1014, 327 P.3d 55 (2014).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
See also Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993) (“[A Terry frisk] . . . must be strictly “limited to that which is necessary for the discovery of weapons.’ ” (quoting Terry, 392 U.S. at 26)); Florida v. Royer, 460 U.S. 491, 499, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (“Terry and its progeny... created only limited exceptions to the general rule that seizures of the person require probable cause to arrest.”); Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979) ("Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or, indeed, any search whatever for anything but weapons.”); Dunaway v. New York, 442 U.S. 200, 210, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979) (“the [Terry Court] approve[d the] narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons”); Sibron v. New York, 392 U.S. 40, 65, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) (“The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.”).
See State v. Kennedy, 107 Wn.2d 1, 12, 726 P.2d 445 (1986) (“In contrast to an arrest, a Terry stop does not present the same dangers to the police officer or to evidence of a crime. . . . [R]aising the stakes of a Terry stop would necessarily increase the volatility in that police-citizen encounter.”). Compare Terry, 392 U.S. at 29 (“The sole justification of the [Terry] search ... is the protection of the police officers and others nearby . . . .”), with Robinson, 414 U.S. at 234 (“The justification ... for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.”).
O’Neill, 148 Wn.2d at 586-87 (custodial arrest is a prerequisite to search incident to arrest even where officer has probable cause to arrest before conducting the search).