Bembury v. Kentucky: A Backpack Full of Fourth Amendment Concerns

​The U.S. Supreme Court held in Riley v. California (2014) that police must obtain a warrant from a judge before inspecting the digital contents of a suspect’s cellphone. The reason, the Court memorably opined, is that a cellphone holds “the privacies of life.”
 
But what about a backpack? Or a purse? Or a shopping bag?
 
Such items don’t come close to having the deep privacy implications of a cellphone, which is stuffed with location data, recent call logs, emails, and personal photos. But personal carry containers, too, can hold items reasonably considered to be private. Are police free to paw through a bag or backpack, or does the same principle from Riley also apply to them?
 
This question is central to the case of William Bembury, who was suspected by police of selling a joint containing synthetic marijuana when he was placed under arrest in a park in Lexington, Kentucky, in 2019. While Bembury was placed in handcuffs, officers searched his backpack and found a small bag of synthetic marijuana and a few dollars. However, Bembury was not wearing the backpack when police searched it – a key fact, since police are allowed to search a person under arrest, including any containers on their person, to ensure officers’ safety. But Bembury’s backpack was sitting on a park table at the time of the arrest. And Bembury never consented to the police search of it.
 
When Bembury appealed on Fourth Amendment grounds, he won in a state appeals court. But he lost before the Kentucky Supreme Court. Kalvis Golde of Scotusblog writes of that court’s dilemma: “Acknowledging that the U.S. Supreme Court has yet to decide whether items like backpacks or purses are categorically protected by the Fourth Amendment during arrest, the state supreme court was split on how to proceed.”
 
In the end, a majority of Kentucky Justices held that because the backpack had been immediately in Bembury’s possession, the officers were justified in their search. Bembury is now asking the Supreme Court to grant review and bring clarity to a hodgepodge of state precedents.
 
Bembury’s petition for review asks the Supreme Court to give state courts a principle by which to draw a line between the permissible search of a person, and nearby “purses, backpacks, suitcases, briefcases, gyms bags, computer bags, fanny packs, etc.” The appeal notes “there is little uniformity” with state courts that “have not yet parsed this issue in those exact terms.”
 
Justices might feel that this case itself is a bit of a Pandora’s backpack. Without a clear standard, police are free to paw though any object they wish. On the other hand, a suspect carrying a backpack stuffed with contraband might simply toss it a few yards away and refuse to allow officers’ to inspect it.
 
The Court might consider that it is odd that a clearer standard exists in the digital world with cellphones under Riley (though still sometimes honored in the breach) than with physical objects an arm’s reach away from a suspect. The high Court should consider granting a review of this case to bring clarity to how the law treats evidence in thousands of cases every year.