             SUPREME COURT OF MISSOURI
                                        en banc
CLETUS GREENE,                              )      Opinion issued September 3, 2019
                                            )
                     Appellant,             )
                                            )
v.                                          )     No. SC96973
                                            )
STATE OF MISSOURI,                          )
                                            )
                     Respondent.            )

     APPEAL FROM THE CIRCUIT COURT OF CAPE GIRARDEAU COUNTY
                 The Honorable Michael E. Gardner, Judge

       Cletus W. Greene appeals the motion court’s judgment overruling his Rule 29.l5

motion for postconviction relief without an evidentiary hearing. He claims his trial counsel

provided ineffective assistance in failing to seek suppression of methamphetamine found

during a warrantless search of a cigarette pack seized from his pocket because the search

occurred approximately 30 minutes after his arrest in an area outside Mr. Greene’s

immediate control.

       The motion court did not err in overruling Mr. Greene’s postconviction motion

because trial counsel was not ineffective in failing to file a motion to suppress the evidence

of methamphetamine found when Mr. Greene’s cigarette pack was searched. A motion to

suppress would not have been meritorious because the search of the cigarette pack was a
lawful search incident to arrest. Accordingly, this Court affirms the motion court’s

judgment.

                         Factual and Procedural Background

       In May 2014, officers assigned to the Southeast Missouri Drug Task Force

responded to an anonymous tip regarding narcotics activity at a motel in Jackson, Missouri.

Detective Bobby Sullivan, Detective Chris Newton, and other officers went to the second-

floor balcony, where Mr. Greene stood with his friend, Matthew Robinson. Detective

Newton talked with Mr. Greene, who was smoking a cigarette. Mr. Greene initially gave

Detective Newton a false name, but Detective Sullivan personally knew him and addressed

him by his real name. When Detective Sullivan asked if Mr. Greene “[had] anything on

[him],” Mr. Greene responded, “Yes, I’ve got marijuana” and motioned down to his left

front pocket.

       The other officers noticed Mr. Robinson had a gun, so they handcuffed both men

and moved them to the ground. Detective Sullivan then asked if he could remove the items

in Mr. Greene’s pocket, and Mr. Greene consented. Detective Sullivan removed several

items from Mr. Greene’s pocket, including a small bud of marijuana and a pack of Kool

brand cigarettes.

       Soon after the items were seized from Mr. Greene, the officers heard the door of a

nearby motel room (“Room 1”) slam shut. Detective Newton then heard shuffling inside.

Upon knocking on the door and entering Room 1, officers found two men and two women

they suspected of engaging in narcotics activity, carrying firearms, and destroying



                                            2
evidence. Task Force Officer Mike Alford arrived several minutes later and helped to

secure the individuals in Room 1.

       The officers placed the items seized from Mr. Greene’s pocket inside Mr. Greene’s

hat and secured them, along with Mr. Robinson’s firearm, on the dresser in an adjacent

motel room (“Room 2”), guarded by two officers standing out front. The male suspects

found in Room 1 were searched and detained in that same room, and the officers searched

Room 1. Simultaneously, the two female suspects were taken to Room 2, where they were

searched. Directly after their search, the two women were escorted out of Room 2.

       Approximately 30 minutes after Detective Sullivan initially removed the cigarette

pack from Mr. Greene’s pocket, Officer Alford entered Room 2, opened the pack, and

looked underneath the cellophane. There, he found a small plastic baggie containing an

off-white substance “secured or taped to the top of the flip top on the inside.” Detective

Newton performed a field test, which indicated the substance was methamphetamine. This

was later confirmed by a laboratory test.

       Mr. Greene was charged, as a prior and persistent drug offender under sections

195.275, RSMo 2000, and 195.291.1, RSMo 2000, with the class C felony of possession

of a controlled substance (methamphetamine), section 195.202, RSMo Supp. 2013. He

pleaded not guilty and was tried by a jury. His defense counsel did not file a motion to

suppress or object at trial to evidence of the methamphetamine found during the search of

the cigarette pack. The jury returned a guilty verdict, and the circuit court sentenced him

to 10 years in prison on the methamphetamine count.



                                            3
       Mr. Greene appealed the judgment, which was affirmed. State v. Greene, 476

S.W.3d 309 (Mo. App. 2015). He subsequently filed a Rule 29.15 motion, claiming his

trial counsel was ineffective for failing to file a motion to suppress the methamphetamine

found in his cigarette pack. The motion court overruled his postconviction motion without

an evidentiary hearing, finding the search was legal because it was incident to a lawful

arrest. Mr. Greene appealed the motion court’s judgment. After opinion by the court of

appeals, this Court ordered the cause transferred. Mo. Const. art. V, sec. 10.

       On appeal, Mr. Greene contends the motion court clearly erred in overruling,

without an evidentiary hearing, his claim that trial counsel was ineffective for failing to file

a motion to suppress the methamphetamine found in the warrantless search of the cigarette

pack seized from his pocket. He asserts a Fourth Amendment challenge to the search would

have been meritorious because the cigarette pack was subsequently searched unlawfully

when it was outside the area of his immediate control and reasonable trial counsel would

have challenged the search.

                                    Standard of Review

       “In reviewing the overruling of a motion for post-conviction relief, the motion

court’s ruling is presumed correct.” McLaughlin v. State, 378 S.W.3d 328, 336-37 (Mo.

banc 2012). This Court overturns a motion court’s judgment only when its findings of fact

or conclusions of law are “clearly erroneous.” Rule 29.15(k). To be overturned, the ruling

must create a “definite and firm impression that a mistake has been made.” Zink v. State,

278 S.W.3d 170, 175 (Mo. banc 2009). Furthermore, a movant is entitled to an evidentiary

hearing only if: “(1) [the movant] pleaded facts, not conclusions, warranting relief; (2) the

                                               4
facts alleged are not refuted by the record; and (3) the matters complained of resulted in

prejudice to [the movant].” McLaughlin, 378 S.W.3d at 337.

       Review of claims of ineffective assistance of counsel are governed by Strickland v.

Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court recognized “the Sixth

Amendment right to counsel exists, and is needed, in order to protect the fundamental right

to a fair trial.” Id. at 684. “[T]he right to counsel is the right to the effective assistance of

counsel.” Id. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). To

prevail on a claim for ineffective assistance of counsel under Strickland, a criminal

defendant must demonstrate both that counsel “failed to exercise the customary skill and

diligence that a reasonably competent attorney would perform under similar

circumstances” and that the defendant “was thereby prejudiced.” Sanders v. State, 738

S.W.2d 856, 857 (Mo. banc 1987).

       Both Strickland prongs must be proven by a preponderance of the evidence.

McLaughlin, 378 S.W.3d at 337. When defense counsel fails to raise a Fourth Amendment

claim, the defendant must “prove that [the defendant’s] Fourth Amendment claim is

meritorious and that there is a reasonable probability that the verdict would have been

different absent the excludable evidence.” Kimmelman v. Morrison, 477 U.S. 365, 375

(1986).

                       Fourth Amendment Claim Not Meritorious

       Determination of the merits of Mr. Greene’s claim that the search of his cigarette

pack was unlawful requires examination of Fourth Amendment jurisprudence. The Fourth

Amendment protects the right to be free from “unreasonable searches and seizures.” U.S.

                                               5
Const. amend. IV. A warrantless search is “per se unreasonable . . . subject only to a few

specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332,

338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One exception to

the warrant requirement is a search conducted incident to a lawful arrest. Id. Under this

exception, an arresting officer may search: (1) “the person of the arrestee” and (2) “the area

within the control of the arrestee.” United States v. Robinson, 414 U.S. 218, 224 (1973).

The search incident to arrest exception allows officers “to remove any weapons that the

[arrestee] might seek to use in order to resist arrest or effect his escape” and to “seize any

evidence on the arrestee’s person in order to prevent its concealment or destruction.” Riley

v. California, 573 U.S. 373, 383 (2014) (quoting Chimel v. California, 395 U.S. 752, 763

(1969)).

       In cases with facts similar to this case, the Supreme Court has addressed the legality

of the search of a cigarette pack when the cigarette pack was seized during a search of the

arrestee’s person. In Robinson, a police officer lawfully arrested Mr. Robinson and

conducted a search of his person. 414 U.S. at 220-23. The officer found a cigarette pack

in Mr. Robinson’s coat pocket and opened it to find 14 gelatin capsules filled with heroin.

Id. at 223.

       In holding the warrantless search of the cigarette pack in Mr. Robinson’s pocket did

not violate the Fourth Amendment, the Supreme Court explained the authority to search a

person incident to arrest does not hinge on what a court later decides was the probability

weapons or evidence would be uncovered. Id. at 235-36. Instead, “[i]t is the fact of the

lawful arrest which establishes the authority to search.” Id. at 235. The Supreme Court

                                              6
held, “Having in the course of a lawful search come upon the crumpled package of

cigarettes, [the police officer] was entitled to inspect it; and when his inspection revealed

the heroin capsules, he was entitled to seize them as ‘fruits, instrumentalities, or

contraband’ probative of criminal conduct.” Id. at 236.

       The Supreme Court decided Gustafson v. Florida, 414 U.S. 260 (1973), the same

day as Robinson. In Gustafson, a police officer lawfully arrested Mr. Gustafson and

conducted a search of his person. Id. at 262. The officer discovered a cigarette box in

Mr. Gustafson’s pocket. Id. After first securing Mr. Gustafson in the back of the squad

car, the officer opened the cigarette box and observed rolled cigarettes later proven to be

marijuana.   Id. at 262 n.2.     Though the search occurred after the initial search of

Mr. Gustafson’s person and outside the area of his immediate control, the Supreme Court

found the warrantless search of the cigarette box was lawful because “[i]t is the fact of the

lawful arrest which establishes the authority to search . . . .” Id. at 263-64 (alterations in

original).

       The Supreme Court did not distinguish between a search of the arrestees’ persons

and searches of their cigarette packs in Robinson or Gustafson. Rather, when referencing

Robinson, the Supreme Court “merely noted that, ‘[h]aving in the course of a lawful search

come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it.’”

Riley, 573 U.S. at 384 (alterations in original) (quoting Robinson, 414 U.S. at 236)). The

Supreme Court later clarified that the exception permitting warrantless searches of an

arrestee’s personal effects was confined to “personal property . . . immediately associated

with the person of the arrestee.” United States v. Chadwick, 433 U.S. 1, 15 (1977),

                                              7
abrogated on other grounds by California v. Acevedo, 500 U.S. 565 (1991). 1 A search of

the personal property immediately associated with the arrestee’s person incident to a lawful

arrest requires no additional justification beyond the lawful arrest. Robinson, 414 U.S. at

235. But warrantless searches of “personal property not immediately associated with the

person of the arrestee” that is seized at the time of an arrest “cannot be justified as incident

to that arrest either if the ‘search is remote in time or place from the arrest,’ or no exigency

exists.” Chadwick, 433 U.S. at 15 (citation omitted) (quoting Preston v. United States, 376

U.S. 364, 367 (1964)).

       Following the analyses of these cases, the search of Mr. Greene’s person and the

seizure of the cigarette pack from his pocket were lawful. After Detective Sullivan asked

Mr. Greene whether he had anything on his person, Mr. Greene admitted he had marijuana

on his person. Mr. Greene concedes there was probable cause to arrest him after he stated

he had marijuana – an illegal substance. Consequent to this lawful arrest, Detective

Sullivan was justified in searching Mr. Greene’s person and seizing items likely to contain

contraband to prevent their concealment or destruction.

       While Mr. Greene does not challenge that the initial search of his person and seizure

of the cigarette pack were lawful, he claims the fact the search of the cigarette pack did not


1
 Many Fourth Amendment decisions have involved determining whether items of personal
property carried by an arrestee may be searched. See, e.g., United States v. Matthews, 532
F. App’x 211, 217-18 (3d Cir. 2013); United States v. Carrion, 809 F.2d 1120, 1128-29
(5th Cir. 1987); United States v. Watson, 669 F.2d 1374, 1383-84 (11th Cir. 1982); United
States v. Monclavo-Cruz, 662 F.2d 1285, 1287-89 (9th Cir. 1981); United States v. Berry,
571 F.2d 2, 3 (7th Cir. 1978); United States v. Lee, 501 F.2d 890, 892 (D.C. Cir. 1974); see
also State v. Carrawell, 481 S.W.3d 833, 849 (Mo. banc 2016) (Wilson, J., concurring)
(collecting cases).

                                               8
occur until after the pack was out of the area of his immediate control makes the search

unlawful. In support of this claim, Mr. Greene references evidence that, after securing him

and removing the cigarette pack, the officers placed the pack in a separate room and did

not return to search the pack until 30 minutes later.

       Contrary to Mr. Greene’s claim, items seized during the search of the person of the

arrestee may be legally searched and need not be searched contemporaneously with the

arrest. In United States v. Edwards, 415 U.S. 800, 802 (1974), the United States Supreme

Court rejected the defendant’s challenge to a ten-hour delay in the seizure of clothing worn

by a defendant at the time of arrest and its subsequent laboratory analysis. The Supreme

Court stated “searches and seizures that could be made on the spot at the time of arrest may

legally be conducted later when the accused arrives at the place of detention.” Id. at 803

(emphasis added). In so holding, the Supreme Court noted with approval long-standing

precedent:

       [O]nce the accused is lawfully arrested and is in custody, the effects in his
       possession at the place of detention that were subject to search at the time
       and place of his arrest may lawfully be searched and seized without a warrant
       even though a substantial period of time has elapsed between the arrest and
       subsequent administrative processing, on the one hand, and the taking of the
       property for use as evidence, on the other.

Id. at 807. The Supreme Court emphasized that the items on the defendant’s person were

subject to seizure and search incident to arrest in concluding:

       While the legal arrest of a person should not destroy the privacy of his
       premises, it does – for at least a reasonable time and to a reasonable extent –
       take his own privacy out of the realm of protection from police interest in
       weapons, means of escape, and evidence.

Id. at 808-09 (quoting United States v. DeLeo, 422 F.2d 487, 493 (1st Cir. 1970)).

                                              9
       Mr. Greene argues, however, that the Supreme Court’s holding in Gant, 556 U.S.

332, on which this Court relied to find a search unlawful in Carrawell, 481 S.W.3d 833,

compels the holding that the officer’s search of the cigarette pack was unlawful because

the cigarette pack was outside the area of his immediate control when searched. 2 Gant and

Carrawell do not aid Mr. Greene. Neither case involved a search of the person of the

arrestee or of an item immediately associated with the arrestee’s person. In Gant, the issue

was the scope of a search incident to arrest in the context of a vehicle search. 556 U.S. at

342-43. In Carrawell, this Court addressed the legality of the search of a plastic bag held

by the arrestee during the arrest. 481 S.W.3d at 837. The bag was seized after it had

dropped to the ground. Id. at 836.

       While much of the discussion in Carrawell on which Mr. Greene relies is dicta,

Carrawell does question the viability of the holdings of Robinson and Edwards. Contrary

to that questioning, the decision of the Supreme Court in Riley compels the conclusion that

the holdings of those cases remain good law and govern the search of items found during

a search of the arrestee’s person.




2
  While relying on the holding in Carrawell that the search of an item outside an arrestee’s
immediate control was unlawful, Mr. Greene challenges the further holding in Carrawell
that evidence from the unlawful search should not be excluded because it was objectively
reasonable for the officers to rely on binding precedent of the court of appeals that the
search was a valid search incident to arrest, even though that precedent was later
overturned. See, e.g., State v. Ellis, 355 S.W.3d 522 (Mo. App. 2011), abrogated by
Carrawell, 481 S.W.3d at 839. Mr. Greene asserts it was objectively unreasonable for
officers in 2014 to follow the overly broad interpretation of the search incident to arrest
exception from prior appellate cases because Gant had already deemed such an
interpretation erroneous in 2009.

                                            10
       The issue in Riley was whether law enforcement’s warrantless searches for

information on cell phones found and seized in a search of the arrestee’s person were

lawful. 573 U.S. at 378. The Supreme Court affirmed the holdings of its prior cases

establishing the scope of the search incident to arrest exception to the warrant requirement.

Id. at 382-84. Riley noted that, beginning in Chimel:

       The Court crafted the following rule for the reasonableness of a search
       incident to arrest: “When an arrest is made, it is reasonable for the arresting
       officer to search the person arrested in order to remove any weapons that the
       latter might seek to use in order to resist arrest or effect his escape.
       Otherwise, the officer’s safety might well be endangered, and the arrest itself
       frustrated. In addition, it is entirely reasonable for the arresting officer to
       search for and seize any evidence on the arrestee’s person in order to prevent
       its concealment or destruction . . . . There is ample justification, therefore,
       for a search of the arrestee’s person and the area ‘within his immediate
       control’ – construing that phrase to mean the area from within which he
       might gain possession of a weapon or destructible evidence.”

Id. at 383 (alterations in original) (quoting Chimel, 395 U.S. at 762-63). The Supreme

Court held the search of Mr. Chimel’s entire home, including the contents of drawers, at

the time of his arrest was unlawful because there was no need to protect officer safety or

to preserve evidence. Chimel, 395 U.S. at 763, 768.

       Next, in discussing Robinson, the Supreme Court expressly stated:

       [T]he Court did not draw a line between a search of Robinson’s person and
       a further examination of the cigarette pack found during that search. It
       merely noted that, “[h]aving in the course of a lawful search come upon the
       crumpled package of cigarettes, [the officer] was entitled to inspect it.”

Riley, 573 U.S. at 384 (second and third alterations in original) (quoting Robinson, 414

U.S. at 236). Instead, the custodial arrest qualifies as a reasonable intrusion under the




                                             11
Fourth Amendment and “a search incident to the arrest requires no additional justification.”

Id.

       Riley then discussed the third case in the “search incident to arrest trilogy,” Gant,

stating it “analyzed searches of an arrestee’s vehicle.”       Id. at 384.   It found Gant

“recognized that the Chimel concerns for officer safety and evidence preservation [that]

underlie the search incident to arrest exception” authorize searches of an arrestee’s vehicle

and the seizure of weapons or evidence “only when the arrestee is unsecured and within

reaching distance of the passenger compartment at the time of the search.” Id. at 384-85

(quoting Gant, 556 U.S. at 343). It also found Gant relied on “circumstances unique to the

vehicle context,” rather than Chimel, to add an additional “independent exception” for a

warrantless search of a vehicle’s passenger compartment “when it is ‘reasonable to believe

evidence relevant to the crime of arrest might be found in the vehicle.’” Id. at 385 (quoting

Gant, 556 U.S. at 343).

       The Supreme Court’s discussion in Riley of Chimel, Robinson, and Gant affirms the

holdings of those cases. Of significance to this case, the articulation of the principles

established in Robinson and Gant shows the Supreme Court continues to distinguish the

search of an arrestee’s person and items immediately associated therewith, which was the

focus of Robinson, from the search of the area within the arrestee’s control, which was the

focus of Gant.

       This conclusion is further confirmed by Riley’s reliance on the analysis and holding

of Robinson to determine whether the warrantless searches of Mr. Riley’s and Mr. Wurie’s

cell phones were lawful. In analyzing these searches, Riley expressly affirmed the rule in

                                             12
Robinson as governing the search and seizure of physical property found incident to the

search of an arrestee’s person. It found, “Robinson’s categorical rule strikes the appropriate

balance in the context of physical objects.” Id. at 386. It noted Robinson found the “two

risks identified in Chimel – harm to officers and destruction of evidence – are present in all

custodial arrests” and outweigh “any privacy interests retained by an individual after

arrest[, which are] significantly diminished by the fact of the arrest itself.” Id. It held,

under Robinson, “[l]aw enforcement officers remain free to examine the physical aspects

of a phone to ensure that it will not be used as a weapon.” Id. at 387. Nevertheless, it

found the nature of the data found on cell phones implicated greater privacy concerns, and

a warrantless search of such data was not “reasonable” under the Fourth Amendment. Id.

at 386.

          The Supreme Court’s express statements in Riley affirm the holding of Robinson,

and its legal analysis affirms the holdings of Gustafson and Edwards. “We do not overlook

Robinson’s admonition that searches of a person incident to arrest, ‘while based upon the

need to disarm and to discover evidence,’ are reasonable regardless of ‘the probability in a

particular arrest situation that weapons or evidence would in fact be found.’” Id. (quoting

Robinson, 414 U.S. at 235). 3 Together, the holdings in Robinson, Gustafson, and Edwards

establish the fact of a lawful arrest is sufficient to justify a reasonably delayed search of




3
  The Supreme Court also recently reaffirmed, in Birchfield v. North Dakota, 136 S. Ct.
2160, 2175-76 (2016), Robinson’s rule that it is the fact of a lawful arrest that justifies a
search of the person.

                                             13
items found on a defendant’s person at the time of arrest. Any contrary statements in

Carrawell should no longer to be followed.

       Because the cigarette pack discovered during a search of Mr. Greene’s person

qualifies as an item immediately associated with his person, it was irrelevant that Officer

Alford searched the pack in a separate room 30 minutes after Mr. Greene was arrested.

The warrantless search of the cigarette pack was justified by the fact of Mr. Greene’s lawful

arrest. Mr. Greene’s Fourth Amendment claim lacked merit; therefore, his counsel was

not ineffective in failing to challenge the search of the cigarette pack. Accordingly, the

motion court did not clearly err in denying Mr. Greene an evidentiary hearing on this claim

and overruling his postconviction motion.

                                        Conclusion

       Because the search of Mr. Greene’s cigarette pack was a lawful search incident to

arrest, he failed to plead facts showing his counsel was ineffective in not challenging the

search. The motion court did not clearly err in overruling his postconviction motion

without an evidentiary hearing. Accordingly, the judgment of the motion court is affirmed.



                                          ___________________________________
                                           PATRICIA BRECKENRIDGE, JUDGE


All concur.




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