                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          March 5, 2019

                                                                            Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                               Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 18-8031

 STACY JO KNAPP, a/k/a Stacy Jo Rafay,
 a/k/a Stacey Jo Knapp,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Wyoming
                         (D.C. No. 2:17-CR-00207-SWS-1)
                       _________________________________

Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Denver, Colorado, for Appellant.

Nicole M. Romine, Assistant United States Attorney (Mark A. Klaassen, United States
Attorney, with her on the brief), Cheyenne, Wyoming, for Appellee.
                        _________________________________

Before HOLMES, McKAY, and KELLY, Circuit Judges.
                  _________________________________

KELLY, Circuit Judge.
                        _________________________________

      Defendant-Appellant Stacy Knapp entered a conditional plea of guilty to being a

felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) & 924(a)(2), and she was

sentenced to 36 months’ imprisonment and three years’ supervised release. The
conditional plea allowed her to appeal the district court’s denial of her motion to

suppress, and in the event it is successful, to withdraw her guilty plea. Fed. R. Crim. P.

11(a)(2). Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand.



                                        Background

       The parties do not dispute the material facts found by the district court. Ms.

Knapp called the police to report a theft at a grocery store in Gillette, Wyoming. 3 R.

18–19. Officers responded to the call, apprehended the theft suspect, and took a

statement from Ms. Knapp in the grocery store. Id. at 19. During their investigation

officers gave police dispatch Ms. Knapp’s name. Id. Dispatchers discovered that Ms.

Knapp had an outstanding warrant for her arrest and informed Officer Zachary Parker.

Id. at 19–20. By then Ms. Knapp had already left the grocery store, so Officer Parker

went to the grocery store parking lot to find Ms. Knapp. Id. at 20.

       Officer Parker found Ms. Knapp in the driver’s seat of a parked pickup truck

outside the store. Id. He instructed her that she could not leave because he had to arrest

her. Id. at 21. Ms. Knapp exited the truck and followed Officer Parker back into the

grocery store. Id. Ms. Knapp voluntarily retrieved her purse from the seat of the truck

when she followed Officer Parker back to the grocery store. Id. at 21–22. Because the

officers were still concluding their theft investigation, Officer Parker asked Ms. Knapp to

sit on a chair outside a bank office located within the store. Id. at 23.

       Once Ms. Knapp sat down, Officer Parker moved her purse, which was closed by

a zipper, a few chairs away from her. Id. at 24. Ms. Knapp then asked her friend who

                                              2
was also present to take her purse, so she would not have to take it to jail. Id. at 25. This

raised the officers’ suspicions. Id. at 70–71. When her friend — who was originally

willing to take her purse — declined, after being warned by Officer Jacob Foutch that

taking it could be illegal, she tried to have her boyfriend take it or leave it in the truck she

had been driving. Id. at 25–26, 41, 67–68. However, Officer Parker refused to let her

leave her purse in the truck. Id. at 26, 70–71. Officer Parker then asked for her consent

to search the purse but she refused. Id. at 41–42. The officers then placed Ms. Knapp in

handcuffs behind her back, and Officer Foutch led her outside while Officer Parker

carried the purse. Id. at 42–43; 1 Supp. R., Ex. C (Subpoena 17-06882 File 4, Body Cam

Video of Officer Jake Foutch), at 29:30–30:00.

         The officers and Ms. Knapp walked to Officer Parker’s patrol vehicle, and Ms.

Knapp stood in front of the hood facing Officer Foutch. 3 R. 43. Officer Parker placed

the purse on the hood of his patrol car. Id. at 28. At that time, Ms. Knapp stood near the

bumper of the patrol car, the purse was on the hood near the windshield (about three to

four feet from Ms. Knapp), and Ms. Knapp stood handcuffed facing away from the car

and toward Officer Foutch. Id. at 28, 43, 56–57. Ms. Knapp’s friend was on the opposite

side of the patrol vehicle. Id. at 28. Next, after Officer Foutch threatened that she would

be guilty of a felony for bringing drugs to a detention center, Ms. Knapp told him she was

carrying a pistol in her purse. 1 R. 50, 55. At that point the officers searched the purse

and found her pistol. When they searched the purse, three officers were present. See 3

R. 29.



                                               3
       Ms. Knapp was charged with one count of unlawfully possessing a firearm after a

felony conviction in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 1 R. 10. She

moved to suppress the firearm on Fourth Amendment grounds, arguing that the search

was unreasonable and that her statement acknowledging the presence of the firearm was

inadmissible derivative evidence. Id. at 12–17. The government argued that the search

was proper under the search incident to arrest and inevitable discovery exceptions. Id. at

18–24; 3 R. 87–89. Without reaching the inevitable discovery issue, the district court

concluded that the search incident to arrest exception applied and consequently denied

the motion to suppress. 1 R. 163.

       The district court, noting that the case presented a “difficult choice,” 3 R. 107,

held that the search satisfied both the spatial and temporal proximity requirements

essential for a search incident to arrest. 1 R. 160, 162. The district court reasoned that

Ms. Knapp’s purse was approximately three feet away from her when it was searched,

and thus she could have gained access. Id. at 160. It reasoned that any delay between the

arrest and the search (some 12 to 13 minutes) was necessitated by the officers conducting

a theft investigation and allowing Ms. Knapp to make arrangements for her truck; there

were no other intervening events separating the arrest from the search. Id. at 162.

       On appeal, Ms. Knapp argues that (1) the search of her purse was not truly

incident to her arrest given intervening events, and (2) the search incident to arrest

exception does not apply because (a) the police chose to put Ms. Knapp in proximity with

her purse, and (b) Ms. Knapp could not have accessed the purse’s contents at the time of

the search. The government responds that given a lawful arrest, Ms. Knapp’s first

                                              4
argument is in essence an attack on the district court’s contrary factual finding. The

government further responds that law enforcement did not artificially create the

circumstances justifying a search of the purse incident to arrest, and law enforcement

properly searched the purse incident to an arrest because the purse was on her person at

the time of the arrest.1



                                         Discussion

       This court reviews de novo whether a search or seizure was reasonable under the

Fourth Amendment. United States v. Sanders, 796 F.3d 1241, 1243–44 (10th Cir. 2015).

It reviews the district court’s factual findings for clear error, and when reviewing the

denial of a motion to suppress, it views the evidence in the light most favorable to the

government. United States v. Serrato, 742 F.3d 461, 470 (10th Cir. 2014).

       The Fourth Amendment provides that “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated.” In general, warrantless searches are per se unreasonable. Katz v.

United States, 389 U.S. 347, 357 (1967). The warrantless search rule, however, is subject

to several exceptions. One exception allows arresting officers to “search the person of

the accused when legally arrested.” Weeks v. United States, 232 U.S. 383, 392 (1914).




1
  Although the government briefed the inevitable discovery issue, see Aplee. Br. at 22–
24, it has since conceded that this issue is not ripe for consideration on appeal because it
involves disputed factual questions that must be resolved by the district court in the first
instance. Oral Arg. at 25:15–50. We accordingly do not consider this issue on appeal,
although we note that this argument may be raised again on remand.
                                              5
Case law has developed to allow not only the search of the arrestee’s person, but also the

area within the arrestee’s “immediate control.” Chimel v. California, 395 U.S. 752, 763

(1969). This authority is justified by the need to disarm the suspect and preserve

evidence. United States v. Robinson, 414 U.S. 218, 234 (1973).

       Whether a search is “of the person” or of the area within the arrestee’s “immediate

control” — that is, “the area from within which he might gain possession of a weapon or

destructible evidence” — is a critical distinction.2 Chimel, 395 U.S. at 763. In United

States v. Robinson, the Court held that a search of an arrestee’s person incident to arrest

need not be justified on a case-by-case basis. Robinson, 414 U.S. at 235. Although the

Court did not address whether areas within the arrestee’s immediate control are also

categorically subject to warrantless searches incident to arrest, it noted that searches of

the arrestee’s person and searches of the area within the arrestee’s immediate control are

“two distinct propositions” that “have been treated quite differently.” Id. at 224. The

Court later reinforced this distinction, albeit in dicta, by noting that arrests create a

reduced expectation of privacy in an arrestee’s person, but not in possessions within her

immediate control. United States v. Chadwick, 433 U.S. 1, 16 n.10 (1977), abrogated on

other grounds by California v. Acevedo, 500 U.S. 565 (1991); see also United States v.

Riley, — U.S. —, 134 S. Ct. 2473, 2483 (2014) (justifying the rule in Robinson by

balancing the arrestee’s expectation of privacy in her person with the need to prevent


2
  Other circuits have aptly referred to this area of immediate control as the arrestee’s
“grab area.” See, e.g., United States v. Gandia, 424 F.3d 255, 261 (2d Cir. 2005); United
States v. Ortiz, 146 F.3d 25, 28 (1st Cir. 1998); United States v. Hudson, 100 F.3d 1409,
1420 (9th Cir. 1996).
                                               6
harm to the officers and destruction of evidence). It thus stands to reason that searches of

areas within an arrestee’s immediate control must be justified on a case-by-case basis by

the need to disarm or to preserve evidence. See United States v. Morgan, 636 F.2d 1561,

1578 n.2, 1579 (10th Cir. 1991) (Seymour, J., dissenting); cf. United States v. Pacheco,

884 F.3d 1031, 1043 n.9 (10th Cir. 2018) (noting that Robinson authorizes only a

“limited search of items found during [a] pat-down” incident to a lawful arrest).

       Because the validity of Ms. Knapp’s arrest is not at issue, this appeal turns on (1)

whether the search of her purse was one of her person for the purposes of Robinson, and

(2) if the search was not of her person, whether the search was nevertheless justified

because it was within “the area from within which [she] might [have] gain[ed] possession

of a weapon or destructible evidence.” Chimel, 395 U.S. at 763.

A.     The Search of Ms. Knapp’s Purse Was Not One “Of Her Person”

       Ms. Knapp presents two arguments why the search of her purse was not one “of

her person” at the time of her arrest. See Aplt. Br. at 11–18. First, she argues that the

government is wrong on the facts because she was not carrying her purse when she was

told she was under arrest; rather, it was sitting somewhere within the truck, and she had

to “collect” it from the truck to bring it into the store. Aplt. Reply Br. at 11. The district

court did not make a specific factual finding comparing the exact time of the arrest with

when Ms. Knapp grabbed her purse. It simply noted, “[Ms. Knapp] brought her purse

with her into the grocery store.” 1 R. 155.

       Even if Ms. Knapp was carrying her purse at the time of her arrest, she argues that

the arresting officers’ search was not one “of her person.” Aplt. Reply Br. at 12–18.

                                               7
Whether the search of a purse (or similar item) carried by an arrestee but not within her

clothing is one “of the person” is a question of first impression in this circuit. Indeed, the

Supreme Court has not clearly demarcated where the person ends and the “grab area”

begins. However, we must resolve the question now before us, and we hold that the

better view is that a carried purse does not qualify as “of the person.” We reach this

conclusion for several reasons.

       First, the animating reasons supporting arresting officers’ “unqualified authority”

to search an arrestee’s person are less salient in the context of visible, handheld

containers such as purses. Robinson, 414 U.S. at 225. Robinson was based in part on the

notion that a lawful arrest empowers an officer to disarm, and if “he ma[y] disarm, he

may search, lest a weapon be concealed.” Id. at 232 (quoting People v. Chiagles, 142

N.E. 583, 584 (1923) (Cardozo, J.)). Although Justice Marshall disagreed in his dissent

in Robinson with the Court’s grant of unqualified authority to search an arrestee’s person,

he acknowledged that more thorough searches of arrestees may be necessitated by the

risk that an arrestee in “prolonged proximity” to officers could harm them with a

concealed weapon. Robinson, 414 U.S. at 253–54 (Marshall, J., dissenting). Because of

an arrestee’s ability to always access weapons concealed in her clothing or pockets, an

officer must necessarily search those areas because it would be impractical (not to

mention demeaning) to separate the arrestee from her clothing.3 See United States v.


3
  It is for this reason that we decline to follow those courts construing the arrestee’s
“person” to include any containers in the arrestee’s “actual” or “physical” possession at
the time of arrest. See, e.g., People v. Cregan, 10 N.E.3d 1196, 1207 (Ill. 2014) (a

                                              8
Edwards, 415 U.S. 800, 803 (1974) (holding that a delay in searching an arrestee’s

clothing for evidence at the stationhouse was reasonable because officers could not have

deprived him of his clothing until substitute clothing was available). In addition, the

holding in Robinson relied on an arrestee’s diminished privacy interest in her person by

way of her arrest such that a pat-down and inspection of containers found within her

clothing “constitute[] only minor additional intrusions.” Riley, 134 S. Ct. at 2484.

Containers held in an arrestee’s hand and not concealed on her body or within her

clothing do not implicate such concerns to the same degree.

       Second, given that handheld containers such as purses are easily dispossessed,

classifying such containers as potentially part of an arrestee’s person would necessitate

unworkable determinations about what the arrestee was holding at the exact time of her

arrest. Although under Robinson the bounds of an arrestee’s person are determined

“[w]hen an arrest is made,” Robinson, 414 U.S. at 226 (quoting Chimel, 395 U.S. at 762–

63)), searches of an arrestee’s person should not depend on an exact time of arrest. Such

a rule would be unworkable in cases like this; it would require arresting officers to

determine or remember exactly when a person obtained or shed the object at issue and

compare that to the exact moment when the officer placed her under arrest. And, because

an arrestee can dispossess a handheld container simply by releasing it from her hand,

more confusion than clarity would result from such a requirement. The Fourth


wheeled bag was on an arrestee’s person because he was gripping its handle at the time of
arrest); State v. Byrd, 310 P.3d 793, 794, 798 (Wash. 2013) (a search of a purse on an
arrestee’s lap constituted a search of her person).

                                             9
Amendment is meant to guide law enforcement conduct and thus needs to be readily

determinable by officers in the field. See Davis v. United States, 564 U.S. 229, 233

(2011). A rule requiring precise timing would frustrate that goal.

       Third, a holding to the contrary would erode the distinction between the arrestee’s

person and the area within her immediate control. The government urges the definition

of an arrestee’s person includes a “container that has a close association with the person,”

Aplee. Br. at 17, a definition likely originating from the Court’s description of the

Robinson exception applying to “personal property . . . immediately associated with the

person of the arrestee.” Riley, 134 S. Ct. at 2484 (emphasis added) (quoting Chadwick,

433 U.S. at 15). To the extent the government suggests a construction that includes more

than the arrestee’s immediate person, worn clothing, or containers concealed within her

clothing, we decline to adopt it. Certainly, officers would have clear guidance from a

rule allowing them to search any container that an arrestee was or may have been

touching around the time of arrest. But such a rule risks expanding Robinson’s limited

exception to grant unqualified authority to search an arrestee’s grab area. The better

formulation, we believe, would be to limit Robinson to searches of an arrestee’s clothing,

including containers concealed under or within her clothing. Accordingly, visible

containers in an arrestee’s hand such as Ms. Knapp’s purse are best considered to be

within the area of an arrestee’s immediate control — thus governed by Chimel — the

search of which must be justified in each case. Accord United States v. Monclavo-Cruz,

662 F.2d 1285, 1287–88 (9th Cir. 1981); State v. Carrawell, 481 S.W.3d 833, 840–41

(Mo. 2016) (en banc).

                                             10
       We also decline to construe the phrase “immediately associated with the person”

as calling for an examination of the container’s function vis-à-vis the arrestee. Reading

Chimel, Robinson, and their progeny together, searches incident to arrest are governed by

a container’s location relative to the arrestee and the degree to which it can be accessed

by or separated from the arrestee, rather than the manner in which it is typically used.

Compare Edwards, 415 U.S. at 804–805 (the impracticality and indignity of removing an

arrestee’s clothing to preserve evidence supports characterizing worn clothing as “of the

person” under Robinson), with New York v. Belton, 453 U.S. 454, 460 n.4 (1981)

(providing as examples of containers possibly within an arrestee’s reach luggage, boxes,

bags, and even clothing). The comparison of purses to items of similar use, such as

wallets, is therefore misleading.4 See Aplee. Br. at 14 (citing United States v. Van Dam,

37 F. App’x 461, 463–64 (10th Cir. 2011)). Because Ms. Knapp’s purse, which was not

concealed under or within her clothing, was easily capable of separation from her person,

we hold that the arresting officers had no authority to search its contents pursuant to

Robinson.




4
  Although the Court in Riley held that cellular phones “implicate privacy concerns far
beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” and it
noted that lower courts have approved searches of purses incident to arrest, it did not
endorse the searches of purses under Robinson, nor did it equate a purse to a wallet.
Riley, 134 S. Ct. at 2488–89. Instead, the comparison supported its narrower holding that
cellular phones must be exempt from Robinson searches because of the sheer quantity of
personal information they contain. Id.
                                             11
B.     The Search of Ms. Knapp’s Purse Was Not Justified Under the
       Circumstances

       We next turn to whether the search of Ms. Knapp’s purse was nevertheless

justified by either the need to preserve evidence or the need to disarm Ms. Knapp. This

question depends on whether the purse was within the area the arresting officers could

“reasonably have believed . . . [the arrestee] could have accessed . . . at the time of the

search.” Arizona v. Gant, 556 U.S. 332, 344 (2009) (emphasis added).

       At the outset, we note that although Gant specifically addressed the search of an

automobile, its principles apply more broadly. The Court held such searches are justified

either by the “twin rationales of Chimel” or by an arresting officer’s reasonable belief

that the vehicle contains evidence of the crime precipitating the arrest. 556 U.S. at 342–

43 (quoting Thornton v. United States, 541 U.S. 615, 624 (2004) (O’Connor, J.,

concurring in part)). As the Third Circuit observed, Gant meant to keep searches incident

to arrest tethered to the Chimel justifications, and Chimel did not involve a vehicle

search. United States v. Shakir, 616 F.3d 315, 318 (3d Cir. 2010) (involving a gym bag);

see also United States v. Cook, 808 F.3d 1195, 1199–1200 (9th Cir. 2015) (applying Gant

to the search of a backpack). The Court also held that the second justification — the need

to search a vehicle for evidence — but not the first, is “unique to the vehicle context.” Id.

at 343. We therefore join the Third Circuit in interpreting Gant as focusing attention on

the arrestee’s ability to access weapons or destroy evidence at the time of the search,

rather than the time of the arrest, regardless of whether the search involved a vehicle. Id.




                                              12
       Applying Gant and Chimel, it was unreasonable to believe Ms. Knapp could have

gained possession of a weapon or destructible evidence within her purse at the time of the

search.5 We look to the following factors to determine whether an area searched is within

an arrestee’s grab area under Chimel: (1) whether the arrestee is handcuffed; (2) the

relative number of arrestees and officers present; (3) the relative positions of the

arrestees, officers, and the place to be searched; and (4) the ease or difficulty with which

the arrestee could gain access to the searched area. United States v. Parra, 2 F.3d 1058,

1066 (10th Cir. 1993). Certainly, officers’ “exclusive control” of an arrestee’s article is

not dispositive of the permissibility of the search. See Belton, 453 U.S. at 461 n.5.

However, the degree to which arresting officers have separated an article from an arrestee

at the time of the search is an important consideration. See Gant, 556 U.S. at 343

(searches of an arrestee’s vehicle are permissible “only when the arrestee is unsecured

and within reaching distance of the passenger compartment at the time of the search”).

Here, not only were Ms. Knapp’s hands cuffed behind her back, Officer Foutch was next

to her, and two other officers were nearby. Moreover, the purse was closed and three to

four feet behind her, and officers had maintained exclusive possession of it since placing

her in handcuffs. We have similarly rejected a search where the defendant was

handcuffed behind his back and could therefore not reach the inside of his bureau



5
  Because we hold that it was unreasonable to believe Ms. Knapp could have accessed
her purse and used the firearm contained within at the time of the search, we need not
reach Ms. Knapp’s other arguments that the search was separated from the arrest by
intervening events, and that the officers chose to place the purse within reaching distance.

                                             13
drawers, night stand, or under his bed. See United States v. Baca, 417 F.2d 103, 105

(10th Cir. 1969); see also United States v. Leo, 792 F.3d 742, 750 (7th Cir. 2015)

(holding that a backpack was not in the defendant’s immediate control after an

investigatory stop where his “hands were cuffed behind his back,” and the backpack was

“no longer in [the defendant’s] possession,” reasoning that it was “inconceivable that” the

defendant “would have been able to lunge for the bag, unzip it, and grab the gun inside”).

Accordingly, although the district court noted that the purse was approximately three feet

away from her at the time of the search, and that she was not otherwise restrained by the

police officers, 1 R. 160, its finding that she could nevertheless have opened the purse

and retrieved the firearm from within was in error.

       The government relies on two Tenth Circuit cases from before Gant to support its

position. See Aplee. Br. at 21. The first, United States v. Parra, involved arresting

officers’ search under two pillows. At the time officers searched under the first pillow

the two arrestees were being handcuffed, but when police searched under the second, the

arrestees were handcuffed behind their backs and seated. 2 F.3d at 1066. The search

under the first pillow — before the arrestees were handcuffed — was permissible because

“there remained a strong possibility that [one of the arrestees] could break free and

retrieve whatever was hidden under the pillow.” Id. Even though both arrestees were

handcuffed, the search of the second pillow was reasonable because the arrestees could

have lunged for a weapon and easily brushed aside the pillow when no officers stood

between them and the pillow. Id. And, most importantly, police had found a handgun

under the first pillow. Id. Aside from the fact that the arrestees were handcuffed behind

                                            14
their backs in Parra, it is readily distinguishable from this case because the factors Parra

listed apply differently here. First, there was only one arrestee here and three police

officers, whereas Parra involved two arrestees. Second, Ms. Knapp’s purse was closed,

whereas the pillow in Parra could easily have been brushed aside. Finally, Ms. Knapp

tried repeatedly to leave her purse behind for the whole encounter (suggesting she was

not trying to effect an escape using a weapon held within it), while a defendant in Parra

glanced at the pillow when asked to raise his hands. Id.

       The second case, United States v. Dennison, 410 F.3d 1203, 1214 (10th Cir.

2005), also provides the government little support. In Dennison, this court upheld a

search incident to arrest when the arrestee was handcuffed and placed in a different area

than the one searched. This court rested this holding in part on the fact that a detainee

may still gain access to a weapon even when he is under police officers’ control. Id. at

1213. However, Dennison was decided before Gant, and thus did not apply the time-of-

search rule. Dennison is also inapposite because the officers had a reasonable suspicion

that the defendant was dangerous and able to gain access to weapons in the vehicle when

his fellow arrestee was arrested on an outstanding weapons charge. Id. at 1212–14.

Here, the government has never suggested that the officers had a reasonable suspicion

that Ms. Knapp was dangerous and able to access weapons.

       Because the search of Ms. Knapp’s purse was not one of her person for the

purposes of Robinson, and because the search of her purse was not actually supported by

the Chimel justifications, the exception for a search incident to arrest does not apply here.

       REVERSED and REMANDED.

                                             15
