Supreme Court to Decide on Warrantless Backpack Searches in Bembury Case

The Supreme Court is currently weighing whether to grant certiorari in Commonwealth v. Bembury, 677 S.W.3d 385 (Ky. 2023), a case from the Kentucky Supreme Court that grapples with the scope of the search incident to arrest exception to the Fourth Amendment’s general warrant requirement.

At the heart of this case is an incident involving an individual suspected of engaging in the sale of marijuana to another individual at a park bench. When two officers approached the man, Mr. Bembury, they proceeded to handcuff and arrest him. Even though his backpack was physically separated from his person, the officers conducted a search of its contents, which led to the discovery of a small quantity of marijuana.

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Although Bembury later entered a plea of guilty to a charge of possessing synthetic drugs, his acceptance of the plea bargain was contingent upon his ability to challenge the validity of the search on appeal, asserting that it constituted a blatant violation of his Fourth Amendment rights.

The Fourth Amendment generally safeguards against unwarranted searches and seizures by law enforcement. However, an exception exists to this rule, permitting searches incident to an arrest where there is a perceived risk of evidence being destroyed or potential weapons being accessible to protect the officer from harm.  Bembury contends that because his backpack was on the bench and his hands were cuffed, the necessary circumstances to justify bypassing the need for a warrant were absent. Consequently, he argues that the search conducted directly contravened his Fourth Amendment protections.

While a Kentucky appeals court agreed with Bembury that the search was unconstitutional, the Kentucky Supreme Court reversed and upheld his conviction. The majority of the court held that any container in a person’s possession at or immediately before their time of arrest falls within the exception to the warrant requirement, thereby justifying the officers’ search of Bembury’s backpack.

Many believe that the Supreme Court has a strong interest in resolving this warrant exception debate for good, as courts all over the country are applying it differently. As noted by Bembury in his appeal to the highest court, “Arrests of people possessing an external container happen all over the country many times every day,” While it is unclear how broadly the court would go in interpreting the warrant exception, one issue they will have to answer if they grant Bembury’s appeal is whether a backpack that is outside the reach of a person in handcuffs falls within the warrant exception.


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