from the United States District Court for the District of
Wyoming (D.C. No. 2:17-CR-00207-SWS-1)
Lee, Assistant Federal Public Defender (Virginia L. Grady,
Federal Public Defender, with him on the briefs), Denver,
Colorado, for Appellant.
M. Romine, Assistant United States Attorney (Mark A.
Klaassen, United States Attorney, with her on the brief),
Cheyenne, Wyoming, for Appellee.
HOLMES, McKAY, and KELLY, Circuit Judges.
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.
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.
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.
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 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.
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.
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.
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.
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 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 ...