Colorado Supreme Court US v. Marshall 12SA215

Decision here.

   Two Colorado Springs officers went to Marshall's house to serve him a summons for indecent exposure (the decision goes on to explain that "serving a summons" meant transporting him to the station to be fingerprinted and processed).  Marshall wasn't there, so they waited outside for him.  Half an hour later, he arrived and the officers met with him in the parking lot.  He had a backpack, which he was instructed to put down.  After he put the backpack down, he was arrested.  During a search incident to arrest, officers found some weed in his pocket.  He was put in the patrol car, and his backpack was searched (incident to arrest).  It had more weed, a scale, and some prescription pills in it.  Marshall was charged with possession with intent to manufacture or distribute.

   The trial court ruled that since Marshall was secured in a patrol car at the time that the backpack was searched, the backpack could not be searched incident to arrest under Arizona v. Gant.  The evidence in the backpack was suppressed, and the people appealed the suppression order.

   The Colorado Supreme Court observed that there is a factual difference between searching a person and searching a vehicle.  The former involves greater risk to the officer, since a person retains some ability to access weapons or evidence on his person even after he has been restrained.  Of greater relevance here, the Gant decision related specifically to searches of a vehicle's passenger compartment incident to arrest, and in no way affected searches of persons or of containers in their possession.  The trial court erred in expanding Gant beyond its own scope.

   Since Gant doesn't apply to these circumstances, the Court turns our attention to a 1988 case (People v. Boff) that does.  In that case, Boff was arrested, and when he got to the station his backpack was searched revealing marijuana.  Boff had argued that the search was not incident to arrest because the backpack had been out of his control for some time when the police had finally gotten around to searching it.  The Colorado Supreme Court had ruled that the search was justified (whether or not there was exigency based on evidence preservation or officer safety) because when a person is validly arrested he loses his expectation of privacy in the items on his person at the time of his arrest.

   So the Court applied the same reasoning here, holding that a person's expectation of privacy in items on or near their person goes away when they are validly arrested.  Marshall's suppression order was reversed, and the case was sent back to the trial court for further proceedings.