United States of America v. Arnez J. Salazar

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2696
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
A RNEZ J. SALAZAR ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 22-cr-10005 — Michael M. Mihm, Judge.
____________________
A RGUED A PRIL 25, 2023 — D ECIDED J UNE 2, 2023
____________________
Before R IPPLE , ST . EVE , and P RYOR , Circuit Judges.
ST . EVE , Circuit Judge. When police officers arrested Arnez
Salazar, they searched his nearby jacket and found a gun. In
the subsequent prosecution for possessing a firearm illegally,
18 U.S.C. § 922(g), Salazar unsuccessfully moved to suppress
the gun. The district court ruled that the police had conducted
a valid search incident to arrest because Salazar could reach
the jacket (and gun) and, in any event, he had abandoned the
jacket. Salazar pleaded guilty but reserved the right to appeal

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2 No. 22-2696
the denial of his motion to suppress. On appeal, he argues that
the district court erred by finding that he could reach the gun
and had abandoned the jacket. We conclude that the search
was a lawful search incident to Salazar’s arrest and therefore
affirm.
I.
A.
On January 14, 2022, Salazar was at a bar in Peoria, Illinois.
He posted a video of himself online, which Peoria police of-
ficers saw. Knowing Salazar had an active arrest warrant for
traffic violations, five officers went to the bar to arrest him.
The bar’s security cameras and the officers’ body-worn cam-
eras captured the events that ensued.
When the officers arrived, Salazar was sitting at the bar
with a beer in front of him and a black jacket on the back of
his chair. Draped over the back of an empty chair to his left
was another jacket with a Purple Heart insignia on its back.
The officers approached Salazar and told him that they had a
warrant for his arrest. Salazar loudly asked why he was being
arrested and who called the police. As he stood between the
two chairs, an officer cuffed his hands behind his back.
The officers conducted the search after cuffing Salazar. A
second officer asked him if he had anything on him, and Sal-
azar said no. That officer reached into Salazar’s pants pockets
and found some cash and a piece of paper, which the officer
immediately returned. A third officer picked up the Purple
Heart jacket from the adjacent chair and searched it. A fourth
officer reached into the right pocket of the black jacket hang-
ing on Salazar’s chair. Salazar asked why the officers were
checking both coats, and the officer who had searched the

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No. 22-2696 3
Purple Heart jacket asked Salazar if that jacket was his. Sala-
zar said yes. The officer who searched Salazar’s pants pockets
asked four times if the black jacket was also his, and Salazar
said no each time. During this time, Salazar remained stand-
ing between the two chairs, with his back to the chair he had
been sitting on and his hands cuffed behind his back. The of-
ficers stood in a semicircle around Salazar; no officer stood
between him and the chair with the black jacket on it.
Meanwhile, the police found a gun in the black jacket on
Salazar’s chair. An officer lifted the jacket off the chair, felt a
firearm in its left side, and said, “There’s a gun in here.” Sala-
zar continued denying that the black jacket was his. The offic-
ers found a wallet containing Salazar’s identification in the
outside left jacket pocket and a gun in the inside left pocket,
which was not zipped or otherwise secured. One of the offic-
ers carried the jacket outside to secure the gun, while other
officers led Salazar away. The arrest and search occurred over
the course of about three minutes.
B.
The government charged Salazar with possessing a fire-
arm illegally, 18 U.S.C. § 922(g), and he moved to suppress
the gun, arguing that the warrantless search of the jacket vio-
lated his Fourth Amendment rights. First, Salazar argued that
the officers had already secured him when they searched the
jacket, so the search was not a valid search incident to arrest.
Second, he contended that he maintained a protected privacy
interest in the jacket because the government could not rely
on his statement that he did not own the jacket—and thus had
disclaimed any privacy interest in it—when the denial came
after an officer illegally searched the jacket’s right pocket.

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4 No. 22-2696
The district court held a hearing at which the government
introduced video and still images from the security cameras
and body-worn cameras. The court described the question of
whether the search was lawful as “extremely fact-intensive”
and “very close,” but it ruled that the gun was found during
a lawful search incident to arrest. The court explained that de-
spite being cuffed and surrounded by officers, Salazar was so
close to his jacket and “agitated” that it would have been
“possible,” albeit “very difficult,” for him to “have reached
that gun.” In the alternative, the court held that the search was
valid because Salazar had abandoned the jacket (and any pri-
vacy interest in it) by denying that he owned the jacket before
an officer searched its left pocket and found the gun. The
court determined that the denial of ownership was not tainted
by the earlier search of the jacket’s right pocket, as officer
safety justified the search.
Salazar pleaded guilty, reserving his right to appeal the
denial of the motion to suppress. The court sentenced him to
28 months’ imprisonment and a three-year term of supervised
release.
II.
Salazar argues that the district court erred by ruling that
the warrantless search of the jacket was a lawful search inci-
dent to arrest and that Salazar had abandoned the jacket. We
review the district court’s legal conclusions de novo and find-
ings of fact for clear error. United States v. Hammond, 996 F.3d
374, 383 (7th Cir. 2021). We may rely on video evidence while
reviewing the district court’s factual findings. See, e.g., United
States v. Norville, 43 F.4th 680, 682 (7th Cir. 2022).

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No. 22-2696 5
A.
Warrantless searches are “per se unreasonable under the
Fourth Amendment—subject only to a few specifically estab-
lished and well-delineated exceptions.” Arizona v. Gant, 556
U.S. 332, 338 (2009) (citation omitted). At issue here is a search
incident to a lawful arrest, an exception to the warrant re-
quirement derived from the dual “interests in officer safety
and evidence preservation.” Id. at 337 (citation omitted); see
Chimel v. California, 395 U.S. 752, 762–63 (1969).
Incident to arrest, officers may search the “area from
within which [the arrestee] might gain possession of a
weapon or destructible evidence.” Chimel, 395 U.S. at 763. If
an arrestee cannot possibly reach the area an officer wants to
search, neither justification for this exception is present, and
it does not apply. Gant, 556 U.S. at 339. In Gant, the defendant
was arrested for driving with a suspended license, cuffed, and
locked in a patrol car before officers searched his car without
obtaining a warrant. Id. at 336. The Court observed that “Gant
clearly was not within reaching distance of his car at the time
of the search.” Id. at 344. From this fact, Gant reasoned that for
the police to lawfully search a car’s interior after arresting its
driver for a traffic violation, the arrestee must be “unsecured
and within reaching distance” of the car’s interior at the time
of the search. Id. at 343.
Salazar seizes on the conjunction in that last quotation to
argue that Gant created a two-part test for the validity of a
search incident to arrest, without expressly saying that it was
doing so. In Salazar’s view, for a search incident to arrest to
be lawful, the arrestee must be both “unsecured” and “within
reaching distance” of the area to be searched. Under that test,
Salazar reasons, the search of his jacket was unreasonable:

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6 No. 22-2696
Because he was cuffed, he was not “unsecured” (part one),
even if he was otherwise “within reaching distance” of the
jacket (part two). Thus, reasonable officers would not think
that they were in danger or that evidence could be destroyed,
and they could not conduct a warrantless search.
In support of the proposition that Gant adopted a two-part
test, Salazar cites United States v. Davis, 997 F.3d 191 (4th Cir.
2021), but that case does not help him. In Davis, the Fourth
Circuit merely noted that it is an open question whether Gant
describes a conjunctive two-part test or “a sliding scale with
two dimensions for evaluating the reasonableness of the of-
ficer’s belief that the arrestee could access [a] container so as
to retrieve a weapon or destroy evidence.” Id. at 198 n.6.
We do not read Gant to demand separate analyses of
whether an arrestee is secured and whether an area is within
reaching distance. A Fourth Amendment issue ordinarily
calls for a fact-intensive case-by-case analysis, requiring a
court to determine whether a search or seizure was objec-
tively reasonable given the totality of the circumstances. See,
e.g., United States v. Yang, 39 F.4th 893, 899 (7th Cir. 2022). In
the context of analyzing reasonable suspicion, for example,
the Supreme Court has explained: “The ‘totality of the circum-
stances’ requires courts to consider ‘the whole picture.’ Our
precedents recognize that the whole is often greater than the
sum of its parts—especially when the parts are viewed in iso-
lation. … The totality-of-the-circumstances test ‘precludes [a]
divide-and-conquer analysis.’” District of Columbia v. Wesby,
138 S. Ct. 577, 588 (2018) (first quoting United States v. Cortez,
499 U.S. 411, 417 (1981); and then quoting United States v.
Arvizu, 534 U.S. 266, 274 (2002)). Determining that a search is
unreasonable based on whether a defendant is secured

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No. 22-2696 7
without considering if he can reach the area to be searched
would be the kind of divide-and-conquer analysis the Court
has rejected.
We think the more faithful reading of Gant places that case
within the normal Fourth Amendment analytical framework.
Rather than articulating a new test, Gant stands for the prin-
ciple that a search incident to arrest is reasonable if it is possi-
ble that an arrestee can access a weapon or destroy evidence
in the area to be searched. See 556 U.S. at 343–44. To be sure,
this analysis may require a court to determine whether an ar-
restee is “unsecured” and whether he is “within reaching dis-
tance” of the search area. See id. But these issues are not
standalone elements of a two-part test—they are factors that
bear on the totality of the circumstances, under which a search
is reasonable or not.
B.
Here, the district court did not clearly err in concluding
that Salazar could have gained access to the black jacket. Un-
like the arrestee in Davis, who was cuffed and face down on
the floor, which “severely curtail[ed] the distance he could
reach” and disabled him from making trouble, 997 F.3d at 198,
the video evidence confirms that Salazar remained standing,
agitated, and adjacent to the jacket. Although five officers sur-
rounded him, no officer stood between him and the jacket.
Under those circumstances, and accounting for the fast-paced
sequence of events, it was reasonable to think that the jacket
posed a threat. Salazar, for example, could have lunged for
the jacket, which might have contained (and did contain) a
weapon.

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8 No. 22-2696
Our decision in United States v. Tejada, 524 F.3d 809 (7th
Cir. 2008), supports this outcome. There, we held “that the po-
lice were entitled to open [a] cabinet in [an] entertainment
center,” even though the arrestee was cuffed, face down on
the floor, and surrounded by police. Id. at 811–12. Although
the arrestee was “unlikely” to “lunge” successfully for the en-
tertainment center, it was still possible because the police did
not know his strength, and he seemed “desperate.” Id. at 812.
Concern for officer safety made the search of the entertain-
ment center reasonable. By contrast, the separate search of a
travel bag within the entertainment center was unreasonable
because it was “inconceivable” that the arrestee could open
the cabinet and the travel bag without being stopped by the
officers. Id. The search of Salazar’s jacket is like the search of
the entertainment center: Although both arrestees were
cuffed, surrounded by police, and unlikely to lunge at the
search area, such a lunge was possible because both arrestees
were unpredictable and adjacent to the area the officers
searched. Further supporting the reasonableness of the search
here, Salazar was upright, while the arrestee in Tejada was on
the floor.
Salazar relies on United States v. Leo, 792 F.3d 742 (7th Cir.
2015), but that decision is distinguishable. There, officers
stopped the defendant, cuffed his hands behind his back, and
frisked him for weapons, finding none. Id. at 745. The officers
then searched the defendant’s backpack, which we held was
unconstitutional. Id. at 745, 749–50. But Leo involved a Terry
stop, which the Supreme Court has long recognized as dis-
tinct in “purpose, character, and extent” from searches inci-
dent to arrest. See, e.g., Terry v. Ohio, 392 U.S. 1, 25–26 (1968).
Indeed, the government never argued, and we did not

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No. 22-2696 9
address, whether officers could have searched the backpack
incident to arrest. See Leo, 792 F.3d at 748.
The district court did not clearly err in finding that there
was a realistic probability that Salazar could reach the black
jacket. Thus, the search was reasonable. The result would be
the same under Salazar’s proposed two-part test because he
was both unsecured and within reaching distance of the
jacket. Since the search of the jacket was valid as a search in-
cident to a lawful arrest, we need not decide whether Salazar
abandoned the jacket.
* * *
The search of Salazar’s jacket that yielded the gun was a
lawful search incident to arrest. Accordingly, the judgment of
the district court is
AFFIRMED.

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