State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0968

State of Minnesota,
Respondent,

vs.

Gideon Wesseh Chea,
Appellant.

Filed May 30, 2017
Affirmed
Peterson, Judge

Hennepin County District Court
File No. 27-CR-14-2574

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Elizabeth A. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman , Presiding Judge; Cleary , Chief Judge; and
Peterson, Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from a conviction of third -degree criminal sexual conduct, appellant
argues that (1) the district court committed reversible error by failing to suppress DNA
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evidence obtained from the warrantless swabbing of his hands, and (2) his conviction must
be reversed because his constitutional right to a speedy trial was violated. We affirm.
FACTS
After going out to a club, K.D. and two of her friends, J.Y. and B.T., went to
appellant Gideon Wesseh Chea’s apartment. K.D. went to sleep in a bedroom , and J.Y.
and B.T. left. K.D. woke up in pain and felt her leg being lifted and then her vagina being
penetrated by fingers. Although she was fully dressed and covered by a sheet when she
went to sleep, K.D. was fully undressed and covered by nothing when she awoke, and she
did not recall feeling her clothing being removed. K.D realized that Chea’s head was
between her legs and that he was licking or sucking her vagina. She became aware that
Chea had used his right hand to lift her left leg and the fingers on his left hand to penetrate
her vagina. K.D. shouted, kicked Chea off of her, grabbed her phone and clothes, and ran
into the bathroom.
K.D. called 911 from the bathroom. Police arrived a short time later, escorted K.D.
out of the apartment, and arrested Chea and took him to the police station. Chea denied
sexually assaulting K.D., claiming that he had tapped her on the thigh to wake her up.
Because K.D. reported digital penetration, a crime -scene investigator swabbed Chea’s
hands. The swabs of Chea’s left hand contained DNA from a mixture of three or more
people, and, although 99.95% of the population could be excluded as contributing to the
mixture, neither K.D. nor Chea could be excluded.
Chea was charged with third-degree criminal sexual conduct. He moved to suppress
the DNA evidence obtained by the warrantless swabbing of his fingers. Detective Mona
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Pearson, the general investigator who requested that Chea’s hands and fingers be swabbed,
testified at the suppression hearing. Pearson had 17 years of experience in law
enforcement, including training on DNA collection and preservation and specialized
training in the preservation of evidence in sexual -assault cases. Pearson stated the
following reasons for not obtaining a search warrant before having Chea’s hands swabbed:
Certainly the time issue. For Mr. Chea to preserve evidence
that was on his fingers potentially, I would have requested that
he remain handcuffed . . . for potentially several hours that it
might take to obtain the search w arrant and get crime lab to
come back out to take these swabs. I did not feel like that was
reasonable to have him handcuffed and to have an officer
basically stand there and watch his every move. I was
concerned that there might be . . . the loss of evidence from his
fingertips. I am aware that . . . if you rub your fingers on
anything or rub them together, you can lose DNA that way. If
you . . . have any contact with liquid, the DNA can be washed
away, and that includes sweating. I was also concerned. I had
information that everyone in the apartment had been drinking
and that at some point, Mr. Chea might have to use the
restroom, which again would require him to have contact with
water or other fluids. He can’t use the restroom when he’s
handcuffed obviously. Basically just concerned that it would
not be reasonable to have him . . . in that manner for the several
hours that it might take to obtain a search warrant.

In denying Chea’s suppression motion, the district court specifically found Pears on’s
testimony credible “based upon her 17 years of experience as [a police] investigator . . . ,
as well as her frankness and sincerity displayed on the witness stand.”
The case was tried to a jury, which found Chea guilty as charged. This appeal
followed sentencing.

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D E C I S I O N
I.
In reviewing a pretrial order denying a motion to suppress evidence, this court
“independently review[s] the facts to determine whether, as a matter of law, the [district]
court erred in its ruling. ” State v. Jackson, 742 N.W.2d 163, 168 (Minn. 2007). But we
review the district court ’s factual findings for clear error and defer to its credibility
determinations. State v. Klamar, 823 N.W.2d 687, 691 (Minn. App. 2012).
Both the United States and Minnesota Constitutions prohibit unreasonable searches
and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. The Supreme Court has
concluded that the collection and analysis of a biological specimen is a Fourth Amendment
search. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 618, 109 S. Ct. 1402, 1413
(1989); see also State v. Lussier , 770 N.W.2d 581, 585, 589 (Minn. App. 2009)
(recognizing that sexual -assault examination of defendant that involved pubic hair
combings and swabbing of cheek, hands, and peni s was a search), review denied (Minn.
Nov. 17, 1999).
A warrantless search is unreasonable unless it falls under a recognized exception to
the warrant requirement. State v. Lemert, 843 N.W.2d 227, 230 (Minn. 2014). One
recognized exception is the exis tence of exigent circumstances. State v. Stavish , 868
N.W.2d 670, 675 (Minn. 2015). Exigent circumstances exist when “there is compelling
need for official action and no time to secure a warrant.” Id. (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949 (1978)). The state carries the burden to prove the
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probable-cause basis for a warrantless search. State v. Flowers , 734 N.W.2d 239, 248
(Minn. 2007).
“The United States Supreme Court has recognized several circumstances that may
give ris e to an exigency that justifies a warrantless search, including preventing the
imminent destruction of evidence.” Stavish, 868 N.W.2d at 675 (citing Kentucky v. King, 563 U.S. 452, 460, 131 S. Ct. 1849, 1856 -57 (2011)). “To resolve whether a law
enforcement officer faced an emergency that justified acting without a warrant, the Court
applies the totality-of-the-circumstances approach.” Id. (citing Missouri v. McNeely, 133
S. Ct. 1552, 1559 (2013)). “The exigent circumstances analysis requires an object ive
evaluation of the facts reasonably available to the officer at the time of the search.” Id.
(citing Brigham City v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 1948 (2006)).
The district court explained its conclusion that the warrantless swabbing of Chea’s
hands was justified as follows:
In the instant case, Detective Pearson, a veteran law
enforcement investigator, determined that evidence of the
crime might be present on [Chea’s] hands and fingers, as
[K.D.] had alleged digital penetration committed by [Chea]. If
this evidence existed, it might have been destroyed at any
moment had [Chea] washed his hands or rubbed his hands
together or on another object just during the very act of living
as a human being. Furthermore, [Chea] was aware tha t law
enforcement believed he had committed a crime, and thus
might have deliberately attempted to destroy the evidence on
his hands. Detective Pearson determined that obtaining a
warrant to conduct a search of [Chea’s] hands might have taken
several hours, as the alleged crime had been committed in the
early hours of a national holiday (Labor Day), and the judge
who was on call to examine warrant requests would have to be
reached at home. After any initial communication with the
judge, law enforcement th en would need to drive to that
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judge’s residence for approval and signature. Thus, Detective
Pearson determined that by the time a warrant had potentially
been approved, any evidence on [Chea’s] hands might have
been destroyed, either purposefully or inadvertently.

Citing Lussier, Chea argues that because he was in custody and under police
supervision, the warrantless swabbing of his hands was not justified by the need to preserve
evidence. 770 N.W.2d at 589. In Lussier, this court concluded that the warrantless sexual-
assault (SARS) examination of the defendant’s genitalia was not valid under the search -
incident-to-arrest exception because neither justification for that exception, officer safety
and preservation of evidence, was present. Id. at 589-90. In addressing the preservation
of evidence, the court stated:
[W]e note that nothing in the record indicates that body -fluid
evidence following a sexual assault naturally evaporates or is
compromised over time like the dissipation of a defendant’ s
alcohol concentration in driving -while-impaired cases. And
here, the SARS examination took place at 5:00 a.m.; the
officers themselves acknowledged that they could have begun
the process to secure a search warrant for respondent’ s
residence and thus presumably his body, as well, by 6:00 a.m.

Because of the very intrusive nature of a SARS
examination, and because respondent was restrained and under
police observation and therefore not capable of destroying
evidence, officers were required to obtain a warrant before
conducting a SARS examination.

Id. at 590.
Chea notes that there was no evidence that he was contemplating or trying to destroy
evidence. But in Lussier, in concluding that a warrantless search of the defendant’s
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residence was justified by exigen t circumstances,1 this court noted “that the correct focus
is on a defendant’s capability of destroying evidence, not whether he or she actually
intended to destroy evidence of a sexual assault.” Id. at 588. Unlike the evidence obtained
during the SARS e xamination in Lussier, the district court found that Chea could have
destroyed DNA evidence on his hands “at any moment” by “rubb[ing] his hands together
or on another object,” or even by sweating. We also note that the search of genitalia in
Lussier was far more intrusive than the search of Chea’s hands, which, under the totality -
of-circumstances, is a factor that weighs in favor of upholding Chea’s search.
Chea argues that the state failed to show that it did not have sufficient time to secure
a warrant. But even if Chea is correct that a warrant could have been quickly obtained
electronically or by telephone, any DNA evidence on Chea’s hands could have been
destroyed, even inadvertently, in a moment. See id. (stating that the defendant’s argument
“that [the state] failed to prove that [the defendant] was a ‘quick -thinking, fast -acting
evidence destroyer’ misses the mark because [the state] was only required to prove that
officers reasonably believed that [the defendant] was capable of destroying eviden ce”).
Thus, even if Pearson was wrong about how long it would take to obtain a warrant, her
belief that Chea was capable of destroying evidence before a warrant could be obtained
was reasonable.

1 In Lussier, the defendant moved to suppress evidence collected during the warrantless
SARS examination and evidence collected during a warrantless search of his residence.
770 N.W.2d at 585. The recitation of facts states that “officers swabbed [the defendant’s]
hands to take a sample of blood because they feared it would be washed or rubbed off.”
Id. at 584. But this fact is not addressed in the opinion.
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Chea cites a Montana case holding that a warrantless swab of the defendant’s hands
was not justified by exigent circumstances. State v. Hardaway, 36 P.3d 900, 915 (Mont.
2001). The Hardaway court relied on Article II, Section 10, of the Montana Constitution,
which states, “The right of individual privacy is essential to the well-being of a free society
and shall not be infringed without the showing of a compelling state interest.” Id. at 910.
That provision grants “Montana citizens a specific right to privacy and broader protection
than does the federal constitution.” Id. Hardaway is also factually distinguishable from
this case in that, in Hardaway, “the police knew that the blood they s wabbed and sent in
for analysis was Hardaway’s blood, and not the blood of a victim that could be washed
away unless taken at once.” Id. at 914; see also State v. Madplume , 150 P.3d 956, 959
(Mont. 2007) (distinguishing Hardaway and concluding that warran tless search of the
defendant’s hands was justified by exigent circumstances when the evidence sought was
the victim’s DNA and a forensic expert testified that the defendant “could have destroyed
the evidence by licking his fingers, rubbing them against a wall or some other surface, or
simply perspiring”).
Given the fact that any DNA evidence on Chea’s hands could have been destroyed
in a moment, even inadvertently, the warrantless swabbing of his hands was justified by
the totality of the circumstances to prevent the imminent destruction of evidence.
II.
The Minnesota and United States Constitutions guarantee c riminal defendants the
right to a speedy trial. U.S. Const. amen d. VI; Minn. Const. art. I, § 6. Minnesota has
adopted a four-factor test for determining whether a defendant’s speedy-trial right has been
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violated. State v. Taylor , 869 N.W.2d 1, 19 (Minn. 2015) (citing Barker v. Wingo, 407
U.S. 514, 530-33, 92 S. Ct. 2182, 2192-93 (1972)). The test requires a court to “consider
(1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted
his or her right to a speedy trial; and (4) whether the delay prejudiced the defendant.” Id.
at 19 (quotation omitted). This court reviews a claimed speedy-trial violation de novo. Id.
Length of delay
“The length of the delay is a ‛triggering mechanism’ which determines whether
further review [of the Barker factors] is necessary.” State v. Windish , 590 N.W.2d 311,
315 (Minn. 1999). “The delay in speedy -trial cases is calculated from the point at which
the sixth amendment right attaches: when a formal indictment or information is issued
against a person or when a person is arrested and held to answer a criminal charge.” State
v. Jones, 392 N.W.2d 224, 235 (Minn. 1986). A delay of seven months from when the
right attaches is long enough to trigger the consideration of the other Barker factors. Id.
And a delay of more than 60 days from the date of the defendant’s speedy -trial “demand
raise[s] a presumption that a violation has occurred.” Windish, 590 N.W.2d at 315-16.
Chea was charged on January 23, 2014. On April 10, 2014, he waived his right to
a speedy trial. He demanded a speedy trial on July 23, 2015. Trial began on November
16, 2015. Therefore, consideration of the remaining Barker factors is appropriate.
Reasons for delay
“The responsibility for promptly bringing a case to trial rests with the state ,” but
different weights are assigned for different reasons causing a delay. State v. Hahn , 799
N.W.2d 25, 30 (Minn. App. 2011), review denied (Minn. Aug. 24, 2011). “[W]hen the
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overall delay in bringing a case to trial is the result of the defendant’ s actions, there is no
speedy trial violation.” State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993). But the state’s
“[d]eliberate attempts at delay weigh heavily against the state,” while more neutral reasons,
such as the state’s negligence or overcrowded courts, weigh only slightly against the state.
Hahn, 799 N.W.2d at 30. Because the right to a speedy trial attaches when a defendant is
arrested or charged, the reasons for the entire delay, not just the delay after the speedy-trial
demand, should be considered. See State v. Osorio , 872 N.W.2d 547, 554 (Minn. App.
2015) (considering reason for delay that preceded defendant’s demand for a speedy trial).
Three delays were at defense counsel’s request. Defense counsel requested
additional time to review evidence, and defense counsel twice requested a continuance
because of health issues. Three other delays were for more neutral reasons, including the
unavailability of a trial judge and unavailability of witnesses for the state, but with no
deliberate attempt at delay by the state.
Assertion of right
A defendant’s assertion of the right to a speedy trial “is entitled to strong evidentiary
weight.” State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989) (quotation omitted). A court
may consider “the frequency and force of the speedy-trial demand because the strength of
the demand is likely to refl ect the seriousness and extent of the prejudice .” Hahn, 799
N.W.2d at 32.
Chea did not assert his speedy-trial right until July 23, 2015, 18 months after he was
charged, and he reasserted it once on September 21, 2015. Trial began less than four
months after Chea first asserted his speedy-trial right. This factor weighs against Chea.
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Prejudice
Whether a defendant is prejudiced from a delay is determined in light of three
interests: “(1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and
concern of the accused; and (3) preventing the possibility that the defense will be
impaired.” Taylor, 869 N.W.2d at 20 (quotation omitted). The third interest, impairment
of the defense, is the most serious. Id. To establish that a delay harms the defense, a
defendant must “suggest evidentiary prejudice.” Id. (quotation omitted).
Chea was not in custody, and he does not suggest any evidentiary prejudice. Chea
asserts that he lost two jobs while waiting for trial, but he cites no record evidence
substantiating this assertion. As of September 15, 2015, Chea was employed.
Based on the lack of prejudice, Chea’s 18-month delay in asserting his speedy-trial
right, and the reasons for the delay being either neutral or attributable to Chea, we conclude
that his speedy-trial right was not violated.
III.
In a pro se supplemental brief, Chea argues that statements in the record about the
reasons for continuances are inaccurate and that evidence about how his DNA may have
transferred to K.D. and vice versa is incomplete; he also raises issues about his attorney
advising him to plead guilty and the possibility that a witness could not be located because
she was using an alias. None of these claims is supported by the record. Chea’s claims
that his apartment was searched and he was photographed without a warrant were not raised

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before the district court and are contrary to the testimony of police officers. Finally, Chea’s
objection to the swabbing of his hands has already been addressed.
Affirmed.