United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_______________
No. 09-3394
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jesus Perdoma, *
*
Appellant. *
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Submitted: April 16, 2010
Filed: September 13, 2010
_______________
Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.
_______________
GRUENDER, Circuit Judge.
Jesus Perdoma was indicted on one count of possession with intent to distribute
fifty grams or more of a substance containing methamphetamine, in violation of 21
U.S.C. § 841(a)(1). Perdoma entered a conditional guilty plea under Federal Rule of
Criminal Procedure 11(a)(2), reserving the right to appeal the denial of his motion to
suppress. The district court1 sentenced Perdoma to 120 months’ imprisonment.
Perdoma appeals, and for the following reasons, we affirm.
1
The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
I. BACKGROUND
On the morning of November 17, 2008, Investigator Alan Eberle of the
Nebraska State Patrol (“NSP”) was on duty in plain clothes at a Greyhound bus
terminal in Omaha, Nebraska. At approximately 6:00 a.m., Investigator Eberle saw
a black SUV pull up to the terminal. Jesus Perdoma exited the vehicle carrying a
small bag and walked into the terminal without gesturing to the driver of the vehicle.
Eberle decided to follow Perdoma into the terminal.
Perdoma walked to the ticket counter and began speaking with an agent while
Investigator Eberle watched from four or five feet away. Eberle overheard Perdoma
request a one-way ticket to Des Moines, Iowa, using the name Jesus Cruz. When
Perdoma retrieved cash from his wallet to pay for the ticket, Eberle saw a government-
issued identification card in the wallet, but he could not read the name on the card.
According to Eberle, Perdoma’s hands were shaking and he appeared nervous
throughout the transaction.
Investigator Eberle approached Perdoma as he walked away from the ticket
counter. Without touching Perdoma, Eberle identified himself as a police officer and
asked Perdoma if he would answer a few questions. Eberle assured Perdoma that he
was “not under arrest or in any kind of trouble,” and Perdoma agreed to speak with
Eberle. In response to Eberle’s questions, Perdoma said that he was on his way from
Denver to his home in Des Moines and that he had arrived at the terminal by cab.
During the brief conversation, Investigator Eberle smelled the odor of
marijuana emanating from Perdoma. Eberle asked to see Perdoma’s identification, but
Perdoma claimed that he did not have any identification with him. Having already
seen a form of government identification in Perdoma’s wallet, Eberle then asked to
see Perdoma’s wallet. As Perdoma reached for his wallet, he was breathing rapidly,
trembling, and looking around the terminal. Based on Perdoma’s answers, his nervous
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behavior, and the smell of marijuana, Investigator Eberle suspected that Perdoma was
engaged in criminal activity.
Perdoma paused after taking the wallet out of his pocket. Instead of handing
the wallet to Eberle, Perdoma put it back in his pocket and ran. Investigator Eberle
ordered him to stop and grabbed his jacket, but Perdoma continued running. After a
brief chase, Eberle and NSP Investigator Scott, who was also on duty at the bus
terminal that morning, wrestled Perdoma to the ground and placed him under arrest.
The officers handcuffed Perdoma and escorted him to an area at the rear of the
terminal. Investigator Eberle searched Perdoma and discovered approximately four
grams of marijuana in the coin pocket of Perdoma’s pants. Meanwhile, Investigator
Scott found approximately 454 grams (one pound) of methamphetamine in Perdoma’s
bag.
A federal grand jury returned an indictment charging Perdoma with one count
of possession with intent to distribute fifty grams or more of a substance containing
methamphetamine. Perdoma moved to suppress the methamphetamine found in his
bag, arguing that his initial encounter with Investigator Eberle was not consensual,
that the officers had no basis to detain him, and that the warrantless search of his bag
was not a valid search incident to arrest. After conducting a suppression hearing, the
magistrate judge2 recommended denying Perdoma’s motion, concluding that
Investigator Eberle acted properly in approaching, detaining, and arresting Perdoma.
The magistrate judge also recommended upholding the search of Perdoma’s bag,
because “[t]he right to conduct such a search incident to arrest is absolute.” After
reviewing Perdoma’s objections to the magistrate judge’s report and recommendation,
the district court rejected the magistrate judge’s reasoning that the search incident to
arrest exception was absolute and held that, after Arizona v. Gant, 556 U.S. ---, 129
2
The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska.
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S. Ct. 1710 (2009), the search incident to arrest exception “cannot legitimize a
warrantless search in the absence of a need to protect officers and safeguard
evidence.” Nevertheless, the district court concluded that the search was valid under
Gant because, given the discovery of marijuana in Perdoma’s pocket, “it was
reasonable for the officer to believe the defendant’s bag would contain evidence of a
drug crime.” Accordingly, the district court denied Perdoma’s motion to suppress.
II. DISCUSSION
“We examine the factual findings underlying the district court’s denial of [a]
motion to suppress for clear error,” United States v. Williams, 577 F.3d 878, 880 (8th
Cir. 2009) (quoting United States v. Walsh, 299 F.3d 729, 730 (8th Cir. 2002)), and
we review the district court’s “legal conclusions about probable cause and reasonable
suspicion de novo,” United States v. Herrera-Gonzalez, 474 F.3d 1105, 1109 (8th Cir.
2007) (citing United States v. Washington, 455 F.3d 824, 826 (8th Cir. 2006)).
Perdoma first argues that his initial encounter with Investigator Eberle was not
consensual and that he was therefore unlawfully seized. We disagree. “[A] seizure
does not occur simply because a police officer approaches an individual and asks a
few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991). “So long as a
reasonable person would feel free to disregard the police and go about his business,
the encounter is consensual and no reasonable suspicion is required.” Id. (internal
citation and quotation marks omitted). Here, Investigator Eberle approached Perdoma
and identified himself as a police officer. Without touching Perdoma or displaying
a weapon, Eberle told Perdoma that he was not under arrest and asked him if he would
answer a few questions. Nothing about this initial encounter would have caused a
reasonable person in Perdoma’s situation to believe that he was not free to disregard
Eberle’s questions and walk away. See United States v. Mendoza-Cepeda, 250 F.3d
626, 628 (8th Cir. 2001) (concluding that the defendant’s encounter with the police
was consensual because “only two officers . . . were present, no weapon was
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displayed, [the defendant] was not physically touched until after he consented to the
touching of his torso, and the language used by [the approaching officer did] not
indicate that [the defendant’s] compliance was compelled”).
Perdoma also argues that Investigator Eberle had no legal basis for arresting
him. Again, we disagree. Although the initial encounter was consensual, Eberle had
probable cause to arrest Perdoma for marijuana possession once he detected the odor
of marijuana emanating from Perdoma.3 See United States v. Humphries, 372 F.3d
653, 659-60 (4th Cir. 2004) (holding that “if an officer smells the odor of marijuana
in circumstances where the officer can localize its source to a person, the officer has
probable cause to believe that the person has committed or is committing the crime
of possession of marijuana” and thus has “authority to arrest him without a warrant
in a public place”). Perdoma contends that his possession of less than one ounce of
marijuana was merely an “infraction” under Nebraska law, see Neb. Rev. Stat. § 28-
416(13), and that the arrest was therefore invalid. Whether the offense was an
infraction or a misdemeanor is irrelevant, however, because “‘if an arrest is otherwise
reasonable, the fact that it is not for an “arrestable” offense [under state law] does not
make it unconstitutional.’” See United States v. Burtton, 599 F.3d 823, 830 (8th Cir.
2010) (quoting Thomas v. City of Peoria, 580 F.3d 633, 637 (7th Cir. 2009))
(upholding an arrest for an infraction under Nebraska law); see also Virginia v.
Moore, 553 U.S. 164, 176 (2008) (“We conclude that warrantless arrests for crimes
committed in the presence of an arresting officer are reasonable under the
Constitution, and that while States are free to regulate such arrests however they
3
Because an arresting officer’s “subjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis,” see United States v. Sledge, 460 F.3d
963, 967 n.3 (8th Cir. 2006) (quoting Whren v. United States, 517 U.S. 806, 813
(1996)), it does not matter that Eberle did not identify marijuana possession as the
basis for arresting Perdoma. “The relevant inquiry is whether probable cause existed
to arrest [the defendant] for some crime, and here we answer that question in the
affirmative.” Id.
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desire, state restrictions do not alter the Fourth Amendment’s protections.”). Because
Eberle had probable cause to believe that Perdoma possessed marijuana in violation
of Nebraska law, we conclude that the arrest did not violate the Fourth Amendment.
Finally, Perdoma argues that Investigator Scott’s warrantless search of his bag
was not justified under any exception to the warrant requirement. The Government
asserts that the search of the bag was a valid search incident to arrest. “[S]earches
conducted outside the judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S.
---, 129 S. Ct. 1710, 1716 (2009) (quoting Katz v. United States, 389 U.S. 347, 357
(1967)). “Among the exceptions to the warrant requirement is a search incident to a
lawful arrest.” Id. A search incident to arrest may lawfully extend to “the arrestee’s
person and the area within his immediate control,” that is, “the area into which an
arrestee might reach in order to grab a weapon or evidentiary items.” Chimel v.
California, 395 U.S. 752, 763 (1969) (internal quotation marks omitted). This
exception “derives from interests in officer safety and evidence preservation that are
typically implicated in arrest situations.” Gant, 129 S. Ct. at 1716.
The crux of Perdoma’s argument is that during the search, the bag was “beyond
his reach” because he was restrained and a police officer had taken control of the bag.
Whether an officer has exclusive control of a seized item does not, however,
necessarily determine whether the item remains in “the area from within which [the
arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395
U.S. at 763 (emphasis added). Accordingly, we have rejected the notion that an
officer’s exclusive control of an item necessarily removes the item from the arrestee’s
area of immediate control. See United States v. Morales, 923 F.2d 621, 626-27 (8th
Cir. 1991) (rejecting the defendant’s argument that the search of his bags, performed
while the defendant was held spread-eagled against a wall three feet away by another
officer, was improper because the police had gained “exclusive control” over the bags,
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explaining that “under this fallacious theory no search or seizure incident to a lawful
custodial arrest would ever be valid; by seizing an article even on the arrestee’s
person, an officer may be said to have reduced that article to his ‘exclusive control’”
(quoting New York v. Belton, 453 U.S. 454, 461-62 n.5 (1981))); United States v.
Mefford, 658 F.2d 588, 591-93 (8th Cir. 1981) (upholding the search of the
defendant’s paper bag as a search incident to arrest because the bag remained in the
area within the defendant’s immediate control even though the arresting officer held
the bag during the search); see also United States v. Tejada, 524 F.3d 809, 812 (7th
Cir. 2008) (noting that the defendant was “unlikely to be able to make a successful
lunge for the entertainment center” while he was “[h]andcuffed, lying face down on
the floor, and surrounded by the police,” but nonetheless holding that the search of the
entertainment center incident to arrest was valid because “the police did not know how
strong he was, and he seemed desperate”); United States v. Horne, 4 F.3d 579, 586-87
(8th Cir. 1993) (upholding a search of furniture that occurred after the defendant and
the only other person in the room had been handcuffed, because the arresting officer
“could reasonably have believed that weapons were within reach of the hand-cuffed
detainees”). Here, the record suggests that the search of the bag occurred in close
proximity to where Perdoma was restrained, in the rear area beyond the ticket counter
of the bus terminal. Moreover, Perdoma had already run from the officers once, and
the officers did not know how strong he was. Under these circumstances, the bag was
within “the area into which [the] arrestee might reach in order to grab a weapon or
evidentiary items.” Chimel, 395 U.S. at 763.4
Perdoma also couples his references to being restrained and “in custody” with
a general citation to Gant, in which the Supreme Court held that a warrantless search
of a vehicle incident to a recent occupant’s arrest is justified only when the arrestee
4
Perdoma also argues that evidence from the search of his person could not
justify the contemporaneous search of his bag, and that “[t]he doctrine of inevitable
discovery is likewise unavailing.” Because we find that the search was justified as a
search incident to an arrest, we need not consider those issues.
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is “unsecured.” 129 S. Ct. at 1719. Reading Perdoma’s argument generously, he
appears to assert that he was “secured” in the bus terminal during the search of his bag
in a matter that calls for application of the Gant standard for a warrantless search of
a motor vehicle incident to an arrest. While the explanation in Gant of the rationale
for searches incident to arrest may prove to be instructive outside the vehicle-search
context in some cases, we agree with the Government that this is not such a case.
In Gant, police officers arrested the defendant at the end of a private driveway
after he stepped out of his vehicle, placed him in handcuffs, and locked him in the
back seat of a patrol car. Id. at 1715. With the defendant thus secured, the officers
searched the defendant’s vehicle and discovered contraband. Id. The Supreme Court
ruled that the search-incident-to-arrest exception did not justify the warrantless search
of the vehicle. In so doing, the Court rejected the previously “widely understood” rule
of New York v. Belton, 453 U.S. 454 (1981), that a vehicle search incident to the arrest
of a recent occupant is a valid exception to the warrant requirement “even if there is
no possibility the arrestee could gain access to the vehicle at the time of the search.”
Gant, 129 S. Ct. at 1718.
In lieu of the rejected Belton rule, the Court relied on the general search-
incident-to-arrest principles of Chimel, under which law enforcement officers may
conduct a search incident to arrest “of the arrestee’s person and the area within his
immediate control,” that is, “the area into which an arrestee might reach in order to
grab a weapon or evidentiary items.” 395 U.S. at 763 (internal quotation marks
omitted). Applying these principles in Gant, the Court explained that “[i]f there is
no possibility that an arrestee could reach into the area that law enforcement officers
seek to search, both justifications for the search-incident-to-arrest exception are absent
and the rule does not apply.” Gant, 129 S. Ct. at 1716. The Court concluded that, in
the vehicle-search context, “the Chimel rationale 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.” Id. at
1719.
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Perdoma has not meaningfully argued, on appeal or before the district court,
how the circumstances of his arrest in a public bus terminal rendered him “secured”
and out of reaching distance of his bag in a manner analogous to the circumstances in
Gant.5 Therefore, we need not contemplate here to what extent Gant has application
beyond the context of vehicle searches. See United States v. Kirkland, 567 F.3d 316,
322 (7th Cir. 2009) (“[I]t is defense counsel’s job to develop suppression arguments
5
Given an opportunity by the district court to file a supplemental brief on the
effect of Gant on his motion to suppress, Perdoma merely stated that there was no
possibility that he could reach the bag because police officers “had taken the bag from
him,” and stated that Gant should be more, not less, relevant outside the vehicle
context because of a lesser expectation of privacy in a vehicle. Def.’s Supplemental
Br. Supp. Objections Magistrate’s Report & Recommendation at 2-3, Clerk’s R. at 39-
40.
On appeal, the entirety of Perdoma’s argument that the search of the bag was
not a proper search incident to his arrest consists of the following two statements:
The officers’ warrantless search of Mr. Perdoma’s carry-on bag executed
after he was restrained and the bag was beyond his reach was unlawful
and unjustifiable as a search on any lawful basis.
Br. Appellant at 8.
The trial court correctly found that that [sic] officers’ warrantless search
of Mr. Perdoma’s carry-on bag was not justified as a search incident to
arrest. Gant v. Arizona [sic], based on Chimel v. California, holds that
a search incident to arrest may include only the arrestee’s person and the
area “within his immediate control”, meaning the area from which the
arrestee might gain possession of a weapon, or destructible evidence.
The moment that Eberle and other officers tackled Mr. Perdoma to the
floor, Mr. Perdoma was “in custody.” Officers took Mr. Perdoma and
his carry-on bag to a rear area of the bus terminal. Because officers took
the bag from him, Mr. Perdoma could not gain possession of its contents.
Br. Appellant at 15-16 (internal citations omitted).
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in a meaningful way so that the government has an adequate opportunity to respond
and the district court to make an informed decision.” (citing United States v. Pope,
467 F.3d 912, 919 (5th Cir. 2006))), cert. denied, 558 U.S. ---, 130 S. Ct. 1120 (2010);
see also United States v. Stanko, 491 F.3d 408, 415 (8th Cir. 2007) (refusing to
address a claim not meaningfully developed on appeal).
The dissent would hold that an arrestee who is restrained in some fashion by
law enforcement necessarily is secured (as contemplated by Gant) such that a
warrantless search incident to arrest of luggage in the arrestee’s immediate area can
never be justified. Gant does not support this logic. After stating the general rule that
a warrantless search is not justified “[i]f there is no possibility that an arrestee could
reach into the area that law enforcement officers seek to search,” 129 S. Ct. at 1716,
Gant elaborates upon the circumstances in which an arrestee no longer has the
possibility to reach into the “passenger compartment” of his vehicle, and the Court’s
discussion of whether the arrestee is no longer “unsecured and within reaching
distance” of that area must be understood in that limited context, id. at 1719. The
Court focuses exclusively on how the rule will affect vehicle searches, stating, for
example:
Because officers have many means of ensuring the safe arrest of vehicle
occupants, it will be the rare case in which an officer is unable to fully
effectuate an arrest so that a real possibility of access to the arrestee’s
vehicle remains. Cf. 3 W. LaFave, Search and Seizure § 7.1(c), p. 525
(4th ed. 2004) (hereinafter LaFave) (noting that the availability of
protective measures “ensur[es] the nonexistence of circumstances in
which the arrestee’s ‘control’ of the car is in doubt”).
Id. at 1719 n.4 (emphases added).
The potential pitfalls of the dissent’s approach are aptly illustrated by a
comparison of Gant to the instant case. The defendant in Gant parked at the end of
a private driveway and was arrested, handcuffed, and locked in the back of a patrol
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car before his vehicle was searched. “Under those circumstances, Gant clearly was
not within reaching distance of his car at the time of the search.” Id. at 1719. By
contrast, here the record suggests that Perdoma was held in close proximity to his bag
while it was searched. E.g., Suppression Hr’g Tr. 38-39 (stating that Perdoma and the
bag both immediately were moved to a “back area” or “back room” to the “rear of the
ticket counter,” and that one officer’s spoken question to Perdoma was audible to, and
answered by, an officer simultaneously conducting the search of the bag).6 Given our
repeated recognition in the non-vehicle search-incident-to-arrest context that it may
be possible for an arrestee restrained in a room to reach items in that room, and
without any argument as to why the Supreme Court’s reasoning with respect to
reaching into a vehicle in Gant should control in Perdoma’s circumstances, we cannot
say that the simple fact of Perdoma’s arrest and restraint left Perdoma “clearly . . . not
within reaching distance of his [bag] at the time of the search.” Gant, 129 S. Ct. at
1719.
Having rejected Perdoma’s challenges to the search of his bag, we conclude that
the search was a valid search incident to arrest. See Chimel, 395 U.S. at 763.7
6
Moreover, in Gant, the only other two individuals in the area already had been
secured in separate patrol cars. 129 S. Ct. at 1715. Perdoma’s arrest and search
occurred in a public bus terminal with at least twenty to thirty other people moving
freely inside (Supression Hr’g Tr. at 16), a situation not present in Gant.
7
The dissent makes much of the fact that Perdoma’s Gant argument was, in part,
persuasive to the district court. However, the district court never addressed the core
question of whether it was possible for Perdoma to access the bag during the search.
Addressing the magistrate judge’s ruling that “[t]he right to conduct such a search
incident to arrest is absolute and not determinative of any concern for officer safety
or destruction of evidence,” the district court stated, “[T]he magistrate judge’s reliance
on the ‘search incident to arrest’ exception . . . is erroneous and contrary to law. Post-
Gant, the ‘search incident to arrest’ exception cannot legitimize a warrantless search
in the absence of a need to protect officers and safeguard evidence.” Rather than
discussing whether Perdoma was able to access the bag during the search, however,
the district court instead found the search valid on an alternate ground, concluding that
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III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Perdoma’s
motion to suppress.
BYE, Circuit Judge, dissenting.
I respectfully dissent. I agree with the majority opinion to the extent that the
opinion holds the initial encounter between Jesus Perdoma and law enforcement was
consensual, and that the officers had a sufficient legal basis to arrest Perdoma. I
would nevertheless reverse the district court’s denial of Perdoma’s motion to suppress
because I believe the subsequent warrantless search of Perdoma’s luggage was
unreasonable.
I
As a threshold matter, I disagree emphatically with the majority’s conclusion
that Perdoma has waived his right to challenge, in whole or in part, the legality of the
the officers could reasonably believe that “further evidence of a drug offense would
be found in [Perdoma’s] bag.” See Gant, 129 S. Ct. at 1719 (holding that
“circumstances unique to the vehicle context justify a search incident to a lawful arrest
when it is ‘reasonable to believe evidence relevant to the crime of arrest might be
found in the vehicle’” (quoting Thornton v. United States, 541 U.S. 615, 632 (2004)
(Scalia, J., concurring))). We read the district court’s memorandum and order simply
as correctly recognizing that after Gant, the magistrate judge’s initial ruling that “[t]he
right to conduct such a search incident to arrest is absolute” could no longer stand.
We note that because the search of a bag in a bus terminal does not involve
“circumstances unique to the vehicle context,” the Supreme Court’s holding in Gant
that police may search an arrestee’s vehicle for “evidence relevant to the crime of
arrest” does not apply to the search of Perdoma’s bag, and the district court’s ruling
on this alternate ground cannot be affirmed. Gant, 129 S. Ct. at 1719.
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search of his luggage under Arizona v. Gant, 129 S. Ct. 1710 (2009). The issue of
whether the search fell within the search incident to arrest exception to the Fourth
Amendment warrant requirement was fully litigated at the district court level–indeed,
the district court ordered supplemental briefing on the precise issue. After the district
court denied Perdoma’s motion to suppress, Perdoma entered a conditional guilty plea
specifically reserving his right to challenge the search on appeal. Before this court,
Perdoma urges us to reverse the district court on the grounds that the search was not
legal. Frankly, it is difficult to imagine what more Perdoma could have done to
preserve the issue.
The majority appears to ground its conclusion on its assertion that “Perdoma
has not meaningfully argued, on appeal or before the district court, how the
circumstances of his arrest in a public bus terminal rendered him ‘secured’ and out of
reaching distance of his bag in a manner analogous to the circumstances in Gant.”
Ante at 9. The record indicates otherwise. In his supplemental brief in support of his
motion to suppress, Perdoma argued that under the facts of the present case,
“[b]ecause officers had taken the bag from him in the bus depot’s lobby, Perdoma
could not gain possession of a weapon or destructible evidence from it.” Appellant’s
Mem. 2 (emphasis added). Addressing another relevant consideration under Gant,
Perdoma asserted that he was in police custody because he had been tackled to the
floor by several police officers. The same factual points were developed during the
suppression hearing on March 3, 2009, where Officer Alan Eberle testified that
Perdoma’s bag was searched in the presence of three officers after Perdoma had been
apprehended, placed in handcuffs, and removed from the public terminal. The district
court, as I discuss below, ultimately accepted Perdoma’s argument that the search of
his luggage was not a valid search incident to arrest, putting the majority in the
uncomfortable position of asserting that Perdoma failed to make the argument that
was not only raised, but in fact carried the day at the district court. On appeal before
this court, Perdoma renews the same argument, stating that “[b]ecause officers took
the bag from him, Mr. Perdoma could not gain possession of its contents.”
Appellant’s Br. 16 (emphasis added).
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Ironically, it is the government, by failing to raise the issue of waiver in its brief
or at oral argument, that has certainly waived any argument that Perdoma waived his
right to challenge the legality of the search. See United States v. Greene, 513 F.3d
904, 906-07 (8th Cir. 2008); Latorre v. United States, 193 F.3d 1035, 1037 n. 1 (8th
Cir. 1999) (declining to address whether appellant’s appeal was precluded by a waiver
provision in the appellant’s plea agreement because the government had failed to raise
the issue in the district court or in the appeal). By sua sponte making and accepting
a waiver argument on the government’s behalf, the majority ignores this precedent.
I would conclude Perdoma has not waived his right to appeal the legality of the search
of his luggage.
II
Properly raised, the question of whether the search of Perdoma’s luggage was
reasonable presents a more difficult question.
Under the Fourth Amendment, the “general rule” is that “warrantless searches
are presumptively unreasonable.” Horton v. California, 496 U.S. 128, 133 (1990).
Indeed, “searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment–subject
only to a few specifically established and well-delineated exceptions.” Id.
In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court recognized
the search incident to arrest exception to the warrant requirement. Specifically, the
Court held that a search incident to arrest may only include “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.”
Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009) (quoting Chimel, 395 U.S. at 763).
“That limitation, which continues to define the boundaries of the exception, ensures
that the scope of a search incident to arrest is commensurate with its purposes of
protecting arresting officers and safeguarding any evidence of the offense of arrest
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that an arrestee might conceal or destroy.” Gant, 129 S. Ct. at 1716 (citing Chimel,
395 U.S. at 763).
In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court applied the
holding of Chimel to the automobile context. The Court issued what was then
commonly understood to be a bright line rule: when an officer lawfully arrests “the
occupant of an automobile, he may, as a contemporaneous incident of that arrest,
search the passenger compartment of that automobile” and any containers therein.
Belton, 453 U.S. at 460.
Most courts, including the Eighth Circuit, read Belton as expanding Chimel,
thus recognizing a fairly broad power to search incident to arrest. For example, in
United States v. Morales, 923 F.2d 621, 626 (8th Cir. 1991), citing Belton, we stated
that “[s]ubsequent decisions [to Chimel] of the Supreme Court and this court have
interpreted the phrase ‘immediate control’ to extend beyond the area that is
conveniently or easily accessible to the arrestee.” Drawing on the analogy to Belton,
this court upheld in United States v. Palumbo the actions of officers who searched an
area behind a dresser drawer while the arrestee stood handcuffed in the same room.
United States v. Palumbo, 735 F.2d 1095, 1097 (8th Cir. 1984). See also United
States v. Mefford, 658 F.2d 588, 591-93 (8th Cir. 1981) (although police officer held
arrestee's sack, the sack was still within arrestee's area of “immediate control”).
Recently, the Supreme Court decided Arizona v. Gant. In Gant, the defendant
was arrested in his car, placed in restraints, and then placed in the rear of the police
car. Gant, 129 S. Ct. at 1715. Police officers then searched the defendant’s car,
discovering drugs. Id. The Supreme Court held that the search was not a valid search
incident to arrest. Id. at 1719. Specifically, the Court said that the broad rule from
Belton must be read in light of the constraints outlined in Chimel:
To read Belton as authorizing a vehicle search incident to every recent
occupant’s arrest would . . . untether the rule from the justifications
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underlying the Chimel exception—a result clearly incompatible with our
statement in Belton that it “in no way alters the fundamental principles
established in the Chimel case regarding the basic scope of searches
incident to lawful custodial arrests.” 453 U.S. at 460, n.3. Accordingly,
we reject this reading of Belton and hold that the Chimel rationale
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.
Id.
Gant held that the search incident to arrest exception applies only in
circumstances where the arrestee is unsecured and in reaching distance of the
passenger compartment of the vehicle. This case is subject to the same rules, even
though it does not involve a vehicle, but rather luggage. While on the surface the
majority purports not to address the issue of Gant’s applicability outside the vehicle-
search context, see ante at 9-10, in substance it goes to great lengths to limit Gant to
vehicle searches. Its efforts are unavailing for at least three reasons. For one, all Gant
does is return the analysis of the search incident to arrest exception to the familiar
moorings of Chimel, a case that did not deal with a vehicle search. Two, it is clear
that Gant contemplates that its Chimel-based rationale would apply to non-vehicle
searches because the opinion goes through trouble of stating that the other part of its
rationale–that based on Thornton v. United States, 541 U.S. 615 (2004)–applies only
in “circumstances unique to the vehicle context.” Gant, 129 S. Ct. at 1719. And
three, we previously have had little trouble concluding that the Belton principles
translate into non-vehicle contexts. See, e.g., Palumbo, 735 F.2d at 1097; Mefford,
658 F.2d at 592-93. There is no reason why having done so, we should now
circumscribe invalidation of the same Belton principles to a vehicle context only.
In sum, Gant is controlling on the facts of this case. Applying the standard
announced in Gant, the district court concluded that under the facts of this case, the
search incident to arrest exception did not apply because the search in this case was
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not necessary to safeguard evidence or protect officer safety. The district court went
on to hold, however, that the search of the bag was reasonable because the search was
supported by independent probable cause. But, as the majority correctly recognizes,
see ante at 8-9 n.7, the independent probable cause justification for the search
advanced by the district court was erroneous. The existence of independent probable
cause to search Perdoma’s luggage is a red herring in this case. The issue is not
whether the police had probable cause to search the bag, but rather whether the police
needed to secure a warrant before searching the bag. Luggage, unlike vehicles, is not
subject to any independent exception to the warrant requirement. Compare United
States v. Chadwick, 433 U.S. 1, 15 (1977) (station house search of two-hundred pound
footlocker does not qualify for warrantless search incident to arrest) with California
v. Carney, 471 U.S. 386, 388 (1985) (departing from the traditional warrant
requirement in the case of vehicles because of the lower expectation of privacy in
vehicles and also their unique mobility). Thus, even if the police had independent
probable cause to search Perdoma’s bag, the search would nevertheless have been
constitutionally unreasonable because the search was conducted without a search
warrant.
The ultimate issue in this case, then, is whether the district court erred when it
concluded that the search of Perdoma’s bag was not valid under incident to arrest
exception. I would conclude the district court did not err. After Perdoma was
subdued, he was handcuffed with his hands behind his back. Two police officers then
led Perdoma in handcuffs to the back of the bus terminal away from the public. One
of the officers carried Perdoma’s bag, a duffel bag zipped shut, to the rear of the
terminal; the second officer escorted Perdoma. At the rear of the terminal, a third
police officer joined the group. One officer searched Perdoma’s person while another
officer simultaneously searched Perdoma’s bag. Contrary to the majority’s assertions,
there is no indication on the record that the officers were concerned about Perdoma’s
strength; indeed, the record is silent as to the relative sizes of the individuals involved
in the arrest. Under these facts, I would conclude the district court did not err when
it concluded that the search was not authorized under the search incident to arrest
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exception. At the time his bag was searched, Perdoma was restrained and unable to
access his luggage, which had already been taken from him. Indeed, Perdoma was
more restrained than the defendant in Gant. Whereas the defendant in Gant was
handcuffed but unsupervised in the back seat of a police car, Perdoma was both
handcuffed and being personally searched by another police officer when the search
of the luggage occurred. Although the majority correctly points out there may have
existed an extremely remote possibility that Perdoma could have broken free,
singlehandedly overpowered three police officers, and, while handcuffed behind his
back, unzipped his luggage, and gained access to a weapon or evidence, Gant teaches
us that such farfetched possibilities do not justify a warrantless search incident to
arrest–after all, the same extremely remote possibility existed in Gant as well. See
Gant, 129 S. Ct. at 1219 (“Because police could not reasonably have believed either
that Gant could have accessed his car at the time of the search or that evidence of the
offense for which he was arrested might have been found therein, the search in this
case was unreasonable.”) (emphasis added). The majority, as does this dissent, cites
cases decided before Gant approving of searches conducted in factual circumstances
similar to this case. But such cases are of limited value, as they may or may not
support the same result post-Gant. As discussed above, these cases were decided
during a period when this court, among others, used the rationale from Belton to
justify broad searches incident to arrest practically untethered to any interest in
protecting officer safety or safeguarding evidence.
Because I would conclude the district court did not err when it held the search
was not a valid search incident to arrest, I would reverse and remand with instructions
to grant Perdoma’s motion to suppress.
III
I respectfully dissent.
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