This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Dwayne Robert Millers,




Filed December 10, 2002

Klaphake, Judge


Dakota County District Court

File No. K902693


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


James C. Backstrom, Dakota County Attorney, Kaarin Sherrill Long, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for appellant)


John M. Stuart, State Public Defender, Mark D. Nyvold, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN  55414 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N


            The State of Minnesota appeals from a pretrial order of the district court suppressing evidence discovered in a locked organizer case belonging to respondent Dwayne Millers.  Because the arresting officer controlled possession of the organizer case, we conclude that exceptions permitting a warrantless search for purposes of officer safety or preservation of destructible evidence are not applicable under these circumstances.  We therefore affirm the order suppressing this evidence.


            The state may appeal a pretrial order if it clearly and unequivocally shows that (1) the suppressed evidence will have a critical impact on the state’s ability to successfully prosecute; and (2) the order was erroneous.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998).  Pretrial suppression orders are reviewed de novo, to determine if the district court erred as a matter of law.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

            Warrantless searches are per se unreasonable unless they fall within a narrow set of exceptions.  State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).  The burden is on the state to prove the existence of an exception to the warrant requirement.  See id. at 223.  Here, the district court held that the state failed to prove that the search was either incident to an arrest or to the search of an automobile incident to an arrest.[1]

            1.            Search Incident to Arrest

            A warrantless search of a person incident to a lawful arrest is permissible.  New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864 (1981); In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997).  The search may include the arrestee’s person, as well as any area within the arrestee’s immediate control.  State v. Fisher, 588 N.W.2d 515, 517 (Minn. App. 1999), review denied (Minn. Apr. 20, 1999).  The area within the arrestee’s immediate control means “the area from within which he might gain possession of a weapon or destructible evidence.”  Id. (quotation omitted).  A lawful search may also extend to containers on the person or within the arrestee’s area of control.  G.M., 560 N.W.2d at 695.  The search of a container is justified because “the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have [in the container].”  Belton, 453 U.S. at 461, 101 S. Ct. at 2864.  However, when an object is in the control of police and beyond the immediate control of an arrestee, its search may be improper because the justification for such a search is to find weapons to promote officer safety or to preserve destructible evidence.  See Fisher, 588 N.W.2d at 517-18 (finding warrantless search improper where arrestee was handcuffed and had no access to areas searched).

            Here, Millers was arrested on a warrant outside of the van in which he had been a passenger.  After the arrest, the driver of the van handed the arresting officer a bag belonging to Millers.  The locked organizer was in this bag.  Because the officer controlled the bag, Millers had no ability to either destroy evidence in the bag or to threaten officer safety with the contents of the bag.  Thus, the arresting officer had ample opportunity to obtain a search warrant to examine the bag’s contents; there are none of the exigent circumstances that typically support a warrantless search.  Under these facts, the warrantless search of the locked organizer, which was fully controlled by police, was not justified.

            2.            Warrantless Search of an Automobile

            Courts have recognized a “bright-line” rule to allow police to conduct a warrantless search of an automobile incident to the arrest of a passenger that may include any containers found within the passenger compartment.  Belton, 453 U.S. at 460, 101 S. Ct. at 2864; State v. White, 489 N.W.2d 792, 794 (Minn. 1992) (acknowledging “bright line” rule of Belton).  This “bright line” rule has been extended to include the search of closed containers found in any part of an automobile if police have probable cause to believe the containers hold contraband.  California v. Acevedo, 500 U.S. 565, 580, 111 S. Ct. 1982, 1991 (1991); State v. Search, 472 N.W. 2d 850, 853 (Minn. 1991) (adopting Acevedo).  Although it is often described as a contemporaneous search, the search of an automobile that is delayed until it reaches the stationhouse has been approved as incident to arrest.  State v. Rodewald, 376 N.W.2d 416, 418-19 (Minn. 1985) (citing United States v. Edwards, 415 U.S. 800, 807-08, 94 S. Ct. 1234, 1239 (1974)).

            The Minnesota Supreme Court has emphasized that the Belton bright line rule extends to arrestees who are occupants of a vehicle, not to vehicles belonging to arrestees who are not occupants of the searched vehicle.  Robb, 605 N.W.2d at 101.  Robb was arrested on a warrant at a boat landing.  Because he was being taken into custody, deputies permitted him to load his boat onto its trailer so his companion could drive it away.  Deputies insisted, however, that for officer safety they would have to search the car and trailer before permitting him to do this.  Robb refused to consent to the search of his car.  In searching the car over Robb’s objection, deputies discovered a loaded shotgun.  Robb, a felon, was not permitted to possess a weapon.  Id. at 98-99.  The court noted that deputies had control over Robb, thus eliminating any concern for officer safety and that Robb was clearly not an occupant of the vehicle and had no “immediate control” over the vehicle interior.  Id. at 102.  The court concluded that the Belton bright line rule only permits a search of the vehicle when the arrestee is an occupant.  Id. at 101.

            The state here appears to argue that anytime a container is somehow connected with an automobile, the automobile search exception justifies a warrantless search.  This is an extremely expansive reading of Acevedo, where police had probable cause to believe that the container placed in the automobile contained contraband.  Acevedo, 500 U.S. at 580, 111 S. Ct. at 1991.  The fundamental reason for permitting a warrantless search of an automobile has not changed; the mobility of the automobile suggests exigent circumstances; the search is permitted to preclude destruction or disappearance of evidence and to promote officer safety.  Robb, 605 N.W.2d at 102.

            Here, as in Robb, Millers had no immediate control over the vehicle interior.  Even more compelling, the critical evidence was controlled by the arresting officer, eliminating any concerns about destruction of evidence or officer safety.  We therefore conclude that the state has not sustained its burden of proving that the exceptions to the warrant requirement apply.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] At oral arguments before this court, the state expressly waived two other possible bases to justify the search:  the inventory search exception or the inevitable discovery doctrine.