                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1966

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                Gerald Dwayne Judkins,
                                      Appellant.

                                Filed September 6, 2016
                                       Affirmed
                                      Ross, Judge

                             St. Louis County District Court
                               File No. 69VI-CR-14-1656

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota; and

Bonnie A. Thayer, Assistant County Attorney, Virginia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Stauber, Presiding Judge; Ross, Judge; and Hooten,

Judge.
                         UNPUBLISHED OPINION

ROSS, Judge

       Deputies watching through the window of a home where they were planning to

execute an arrest warrant saw five people, including Gerald Judkins, smoking

methamphetamine. After deputies entered and arrested Judkins, he removed his jacket,

ostensibly to facilitate his handcuffing. The arresting deputy took Judkins to a squad car

and returned to retrieve and search the jacket, finding methamphetamine. In this appeal

after Judkins’s conviction for possession of a controlled substance, we must decide whether

the jacket search was constitutional. Although the search occurred after Judkins was placed

in the squad car and the search therefore cannot be justified by the search-incident-to-arrest

rationales of securing dangerous weapons or preventing evidence destruction, the search

was valid because it constituted a search of the arrestee’s person and was not a substantial

additional intrusion on Judkins’s privacy beyond his arrest.

                                          FACTS

       St. Louis County deputies approached a Mountain Iron home to execute a warrant

to arrest D.M. The deputies stood outside and saw through a window that five people were

sitting around a table smoking what appeared to be methamphetamine. A man came outside

and the deputies confronted him, asking if D.M. was inside. He said she was, and the

deputies entered.

       The deputies saw drug paraphernalia on a table and arrested everyone in the house,

including Gerald Judkins.




                                              2
       When it was Judkins’s turn to be handcuffed, Sergeant Grant Toma had difficulty

handcuffing him because Judkins wore a bulky jacket. Judkins offered to remove his jacket,

and after he did, Sergeant Toma placed it on a chair. The sergeant handcuffed and frisked

Judkins, walked him outside, and secured him in a squad car. Sergeant Toma reentered the

home to help the other deputies photograph the table and collect the evidence. Sergeant

Toma picked up Judkins’s jacket and searched the pockets, where he found Judkins’s

wallet, Judkins’s cell phone, and an eyeglasses case holding plastic bags containing

methamphetamine.

       The state charged Judkins with second-degree possession of methamphetamine

under Minnesota Statutes section 152.022, subdivision 2(a)(1) (2014). Judkins moved to

suppress the evidence of the methamphetamine discovered in his jacket, arguing among

other things that it resulted from an unconstitutional search. The state argued that the search

was valid as incidental to Judkins’s arrest and, alternatively, that the deputies would have

inevitably discovered the drugs by eventually completing an inventory search.

       The district court conducted a hearing and denied Judkins’s motion to suppress,

holding that the jacket search fell under the search-incident-to-arrest exception to the

warrant requirement. The district court did not make any findings or ruling about the state’s

inevitable-discovery argument.

       The parties agreed to proceed to a bench trial under Minnesota Rule of Criminal

Procedure 26.01, subdivision 4, allowing Judkins to appeal the district court’s denial of his

motion to suppress. The district court found Judkins guilty of second-degree possession.

Judkins appeals.


                                              3
                                      DECISION

       On appeal of a motion to suppress evidence, we review a district court’s fact-

findings for clear error and its legal conclusions de novo. State v. Gauster, 752 N.W.2d

496, 502 (Minn. 2008). Here the facts are undisputed, so our review is entirely de novo.

See State v. Burbach, 706 N.W.2d 484, 487 (Minn. 2005).

       The Fourth Amendment to the United States Constitution guarantees the “right of

the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures.” U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. A

warrantless search is presumed unconstitutional so that the evidence obtained in the search

is suppressed. See State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003). But evidence found

during a warrantless search may be admissible if the circumstances fall under an exception

either to the warrant requirement or to the exclusionary rule. See id.

       The district court held that the jacket search was constitutional under an exception

to the warrant requirement, specifically, search incident to a valid arrest. Under the search-

incident-to-arrest exception, police may search the arrestee’s person and the area within

his immediate control. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040

(1969); State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000). Judkins argues that the search

cannot be justified as a search incident to arrest because he was already locked in the squad

car and separated from his jacket at the time of the search, making it unnecessary for the

deputies either to secure any weapon in the jacket or to prevent him from destroying any

evidence in the jacket. We reject Judkins’s search-incident-to-arrest argument because it

conflates a search of the area around an arrestee with a search of the arrestee’s person.


                                              4
       The search of the area around an arrestee within his immediate control (as opposed

to a search of the arrestee himself) rests on either of two justifications: (1) police need to

find and remove any weapons the arrestee might use to resist arrest or to escape, or

(2) police need to prevent the arrestee from concealing or destroying evidence. See Chimel,

395 U.S. at 762–63, 89 S. Ct. at 2040. The Chimel Court stated that these rationales mark

the only justifications for an area search, and it defined the area within an arrestee’s

“immediate control” as “the area from within which he might gain possession of a weapon

or destructible evidence.” Id.

       The United States Supreme Court more recently explained in Arizona v. Gant that

a search under Chimel’s reasoning “authorizes police to search a vehicle incident to a recent

occupant’s arrest only when the arrestee is unsecured and within reaching distance of the

passenger compartment at the time of the search.” 556 U.S. 332, 343, 129 S. Ct. 1710, 1719

(2009). The Gant Court therefore scored a correction, clarifying that the area within the

arrestee’s immediate control referred to the area at the time of the search, not at the time

of the arrest. Judkins is correct that the search therefore cannot be validated under Chimel

and Gant as a search of his immediate area; at the time of the jacket search, the jacket was

not in his immediate area.

       But the state correctly emphasizes that a search of the arrested person incident to

arrest differs fundamentally from a search of the immediate area incident to arrest. And the

caselaw establishes that a search of the arrestee’s person incident to the arrest is

constitutional regardless of the arrestee’s ability to access weapons or evidence at the time




                                              5
of the search. We first address how a search of the person differs from a search of the area.

We then consider whether the jacket is part of the “person” in this case.

       The United States Supreme Court has long indicated that searches of the arrestee’s

person incident to arrest fundamentally differ from searches of the area within the arrestee’s

immediate control. In United States v. Robinson, for example, the Court observed that the

warrant exception under a search incident to arrest “has historically been formulated into

two distinct propositions,” which have been treated “quite differently.” 414 U.S. 218, 224,

94 S. Ct. 467, 471 (1973). Under the first proposition, the officer may search “the person

of the arrestee by virtue of the lawful arrest;” under the second, the officer may search the

area within the arrestee’s immediate control. Id. Although the temporal and physical scope

of the area within the arrestee’s immediate control has been much debated and qualified,

Robinson contrastingly recognized “the unqualified authority of the arresting authority to

search the person of the arrestee.” Id. at 225, 94 S. Ct. at 472; cf. Weeks v. United States,

232 U.S. 383, 392, 34 S. Ct. 341, 344 (1914) (acknowledging the right of the government

“always recognized under English and American law, to search the person of the accused

when legally arrested, to discover and seize the fruits or evidences of crime”).

       In a recent opinion, the Supreme Court recognized that Chimel’s twin rationales,

necessarily based on the “heightened government interests at stake in a volatile arrest

situation,” are not the only bases for the search-incident-to-arrest warrant exception. Riley

v. California, 134 S. Ct. 2473, 2488 (2014). The Court observed that, when it comes to

searches of the person, the doctrine is also based on “an arrestee’s reduced privacy interests

upon being taken into police custody.” Id.; see also United States v. Chadwick, 433 U.S. 1,


                                              6
16 n.10, 97 S. Ct. 2476, 2486 n.10 (1977) (differentiating the rationales between searches

of the immediate area and searches of the person by explaining that only the latter can be

justified by “reduced expectations of privacy caused by the arrest”). The Riley Court

referenced Robinson’s favorable treatment of then-Judge Cardozo’s explanation of the

exception that “the law is in the act of subjecting the body of the accused to its physical

dominion.” Riley, 134 S. Ct. at 2488 (indirectly quoting People v. Chiagles, 142 N.E. 583,

584 (N.Y. 1923)). Riley recognized that “inspecting the contents of an arrestee’s pockets

works no substantial additional intrusion on privacy beyond the arrest itself.” Id. at 2489.

It reasoned that the search of the arrestee in Robinson was constitutional because the pat

down of an arrestee’s clothing constitutes “only minor additional intrusions compared to

the substantial government authority exercised in taking Robinson into custody.” Id.; cf.

id. at 2495–96 (Alito, J., concurring) (opining that the search-incident-to-arrest exception

is not primarily based on Chimel’s twin rationales and noting historical support for searches

of the arrestee to obtain evidence for the arrestee’s prosecution).

       We conclude that a search of the person of an arrestee is distinct from a search of

the area within the arrestee’s immediate control and subject to the bounds of the arrestee’s

privacy interests, rather than limited in scope by the arrestee’s ability to access weapons or

to destroy or conceal evidence. We recognize that Justice Alito’s opinion in Birchfield v.

North Dakota states that Riley, which had addressed a search for digital data as opposed to

tangible objects, suggested that a privacy analysis applies to situations that “could not have

been envisioned when the Fourth Amendment was adopted.” 136 S. Ct. 2160, 2176 (2016).

But we do not believe that this dicta undercuts Riley’s explanation that a physical search


                                              7
of the arrestee’s person is justified by the lack of an additional privacy intrusion beyond

taking possession of the person. Nor does it diminish the authority of the caselaw Riley

relied on to develop its reasoning. See Riley, 134 S. Ct. at 2488–89.

       Applying this standard, we conclude that the search of Judkins’s jacket can be

justified if the jacket was part of his person. We hold that it was. Judkins argues that the

person includes only those items on the arrestee’s body at the time of the search, and the

state argues that the arrestee’s person is defined at the time of the arrest. The state has the

better position. Because the justification for a search of the person (as opposed to the

justification for a search of the area immediately around the person) arises from the lack of

“substantial additional intrusion on privacy beyond the arrest itself,” id. at 2489, it follows

that a search of everything that constitutes the person can occur without a warrant either

during or after the arrest. The privacy intrusion that justifies the search at the time of arrest

corresponds to the loss of liberty associated with the arrest. It is not surprising then that an

arresting officer may search the arrestee’s person at the moment of the arrest; an officer

who transports the arrestee to jail might later search the arrestee again on the same

justification; and a jailer might additionally search the arrestee on his arrival to jail. United

States v. Edwards, 415 U.S. 800, 803, 805, 94 S. Ct. 1234, 1237–38 (1974).

       The deputy seized Judkins’s person by arresting him, and the seizure of his person

included all the clothing that Judkins wore at the time. Judkins was wearing his jacket.

After the deputy placed Judkins under arrest but before he searched him, he handcuffed

him. The deputy therefore had already seized the jacket and lawfully possessed it as part

of Judkins’s person even before Judkins removed it. That Judkins removed the jacket after


                                               8
the arrest and during the handcuffing procedure is not constitutionally significant; nothing

in the caselaw Judkins cites suggests that the post-arrest removal of clothing from an

arrested person removes the clothing from the scope of the officer’s lawful seizure and

search of it. The deputy’s momentarily placing the jacket aside to effect the cuffing is of

no more constitutional consequence than if he had momentarily let go of Judkins himself.

       Although we rest our holding on the Supreme Court’s approach to search incident

to arrest of the person and the limited privacy interests of arrestees but not on any policy

consideration, we observe that Judkins’s argument to the contrary carries a public-policy

problem. His approach would unreasonably encourage arrestees to separate themselves

from the criminal evidence on their persons after they are placed under arrest. Here, for

example, Sergeant Toma testified that Judkins himself suggested that removing the jacket

might facilitate the handcuffing. A less mannered arrestee might endanger the officer by

resisting arrest or fleeing at least long enough to toss aside any incriminating clothing.

Nothing we have seen in the Constitution or caselaw suggests the distinction that Judkins

advocates, and the practical implications are unfavorable.

       We add that a lawful search of Judkins’s person includes not only his jacket and the

discovery of the eyeglasses case, it also includes the deputy’s opening and searching inside

the case itself. By opening the case that he found in Judkins’s pocket, Sergeant Toma

engaged in no more of an invasion than the officer in Robinson. The Robinson Court held

that the officer did not search unconstitutionally by opening a cigarette pack he found in

the arrestee’s pocket, discovering heroin pills. See Robinson, 414 U.S. at 223–24, 94 S. Ct.

at 471. The case that the deputy opened here is typical of a variety of personal items that


                                             9
courts have approved for opening and searching incident to arrest. See, e.g., United States

v. Carrion, 809 F.2d 1120, 1123, 1128 (5th Cir. 1987) (holding that the arrestee’s billfold

and address book were seized under a lawful search incident to arrest); United States v.

Watson, 669 F.2d 1374, 1383–84 (11th Cir. 1982) (holding the seizure of a wallet from the

arrestee’s coat and the search of the wallet was within the scope of a search incident to

arrest); United States v. Lee, 501 F.2d 890, 891–92 (D.C. Cir. 1974) (holding the seizure

and search of arrestee’s purse was incident to arrest).

       Because the search of Judkins’s jacket and glasses case was a search of the person

causing no greater intrusion into Judkins’s privacy than the arrest itself, we hold that the

methamphetamine was discovered during a search incident to a lawful arrest. We need not

discuss the parties’ inevitable-discovery arguments. We affirm the district court’s decision

denying Judkins’s motion to suppress.

       Affirmed.




                                             10
