This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-98-243

State of Minnesota,

Appellant,

vs.

Ryan William Pageau,

Respondent.

Filed July 21, 1998

Reverse and remand

Toussaint, Chief Judge

Sherburne County District Court

File No. K9971885

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55155 (for appellant)

Walter M. Kaminsky, Sherburne County Attorney, Nancy J. Logering, Assistant County Attorney, 13880 Highway 10, P.O. Box 318, Elk River, MN 55330 (for appellant)

Michael F. Cromett, McMahon & Cromett, PLLP, 2499 Rice Street, Suite 260, Roseville, MN 55113-3724 (for respondent)

Considered and decided by Toussaint, Chief Judge, Davies, Judge, and Schultz, Judge.(1)

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

In this pretrial appeal, appellant State of Minnesota challenges the trial court's granting of respondent Ryan Pageau's motion to suppress evidence obtained from the search of Pageau's jacket.

Pageau was charged with one felony count of controlled substance crime in the fifth degree and one petty misdemeanor count of possession of drug paraphernalia. Police officers were present in Pageau's apartment serving an eviction notice and after a warrant check, discovered that there was an active arrest warrant for Pageau. After Pageau was informed of the warrant, he removed his jacket and placed it on the couch beside him. The officers searched the jacket and recovered two canisters of mace and a baggie containing a white powdery substance.

The trial court concluded that there was no probable cause for the search of the jacket and ordered evidence of the methamphetamine suppressed. The state appeals this pretrial ruling. Because we conclude that the jacket was within the area of Pageau's immediate control and in accordance with State v. Rodewald, 376 N.W.2d 416, 417 (Minn. 1985), we reverse and remand for further proceedings.

D E C I S I O N

I.

Suppression of Evidence

[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.

State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). An appellate court conducts a de novo review of the facts to determine if the trial court erred.

This court will, in a pretrial appeal, reverse the determination of the trial court only if the state demonstrates clearly and unequivocally, first, that the trial court erred in its judgment and, second, that unless reversed, the error will have a critical impact on the outcome of the trial.

State v. Kim, 398 N.W.2d 544, 547 (Minn. 1987) (citation omitted).

The 'clearly erroneous' test * * * is the test that would be properly used in the first instance if the trial court had rejected some of the officers' testimony. The correct approach in a case where the facts are not significantly in dispute is to simply analyze the testimony of the officers and determine if, as a matter of law, the officers were justified under the cases in doing what they did.

State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988) (citations omitted).

In suppressing the evidence found in Pageau's jacket, the trial court concluded there was no probable cause to believe that Pageau was engaged in illegal activity.

A. Search Incident to Arrest

The state argues that the search falls under the "search incident to arrest" exception. The only justification required for a search incident to arrest is that a lawful custodial arrest was made. Wayne R. LaFave, Search and Seizure; A Treatise on the Fourth Amendment, Third Edition Vol. 3, 5.5(a) at pg. 170, (Wayne R. LaFave, 3d ed. 1996) (citing United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467 (1973)).

In Chimel v. California, the United States Supreme Court said:

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.

395 U.S. 752, 763, 89 S.Ct. 2034, 2040 (1969).

In Rodewald, the Minnesota Supreme Court concluded that the police, on incident-to-arrest grounds, may conduct a warrantless search of an arrestee's pocket, wallet, and other containers immediately associated with the arrestee, at the scene of the arrest without having to articulate any need in the particular instance for such a search. 376 N.W.2d 417. In Rodewald, the officer spotted the defendant and thought he may have an outstanding warrant, stopped him, confirmed the warrant was active, and placed the defendant under arrest. Id. at 418. The officer frisked the defendant before placing him in the squad car, recovered a locked-blade knife, and then transported him to the jail. Id. The officer assisted the jailer in conducting an inventory search of defendant's person, as was the standard procedure, and as a part of that search, began to look through the defendant's wallet, where he recovered an acid blotter used to ingest LSD. Id. The supreme court validated the officer's conduct on search incident-to-arrest grounds. Id. at 316. Here, the record reveals that after Pageau was handcuffed, his jacket was directly underneath him on the couch, approximately 12 inches from his hands. The transcript does not indicate whether Pageau was cuffed with his hands in front of him or behind him. The record reveals that the search of the jacket was contemporaneous with the officer's direction and control of Pageau.

Because the jacket was within the area of Pageau's immediate control, the police officer's search of Pageau's jacket was justified for officer safety purposes. Under the circumstances and according to Rodewald, we conclude that the suppression of this evidence was error.

B. Critical Impact

The state's claim that the suppression of the methaphetamine will have a critical impact on the outcome of the trial is undisputed.

Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state's case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.

Kim, 398 N.W.2d at 551.

Without evidence of methamphetamine the state could not prove the essential elements of the crime of controlled substance crime in the fifth degree. The state has shown that the suppression of this evidence would have a critical impact. State v. Hart, 412 N.W.2d 797, 800 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987)(critical impact found in narcotics case where cocaine bundles were suppressed, and leaving only residue as evidence in the case).

Pageau is awarded $2000 for attorney fees. See Minn. R. Crim. P. 28.04, subd. 2(6).

Reverse and remand.

1 Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.