State v. Mose B. Coffee, 2019 WI App 25; affirmed 6/5/20; case activity (including briefs)
This published decision should make for an interesting petition for review. The court of appeals rejects a prior unpublished opinion, State v. Hinderman, to hold:
¶13 . . . [W]hen an officer lawfully arrests a driver for OWI, even if alcohol is the only substance detected in relation to the driver, a search of the interior of the vehicle, including any containers therein, is lawful because it is reasonable to believe evidence relevant to the offense of OWI might be found. Thus, the search of Coffee’s vehicle in this case was lawful and the circuit court properly denied his suppression motion.
During a traffic stop, an officer detected slurred speech, bloodshot eyes, and the odor of alcohol on Coffee, conducted FSTs and then arrested him. Two other officers began searching the vehicle and noticed a tote bag on the floor behind the driver’s seat. They rummaged through it and on the bottom found 2 mason jars filled with marijuana, cell phones, small plastic baggies. Then they searched the trunk and found more marijuana and drug paraphernalia.
Coffee moved to suppress arguing that it was not reasonable for officers to believe that any OWI-related evidence would be found at the bottom of the tote bag behind the driver’s seat. He noted State v. Hinderman where the court of appeals affirmed the suppression of marijuana and paraphernalia that were found in a 3 x 3 inch pouch in a car because the driver had been arrested for OWI and evidence of OWI was not likely to be found in such a tiny container. Now it’s curtains for Hinderman. The court of appeals here holds that it was wrongly decided:
[I]n Hinderman we ultimately relied upon the wrong standard, as Coffee does in this appeal. We erroneously expressed in Hinderman that the standard was whether there was “a reasonable belief that evidence relating to the crime of OWI would be found” in the pouch. See id., ¶11 (emphasis added). In Gant, 556 U.S. at 343, however, the United States Supreme Court established that, in the vehicle context, a search incident to a lawful arrest is permissible “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found’” in the vehicle. (Emphasis added; citation omitted). Our state supreme court has adopted this standard from Gant. See Dearborn, 327 Wis. 2d 252, ¶¶26-27, 29. Opinion ¶9.
The court of appeals noted that under Gant “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” Opinion, ¶10 (quoting Gant, 556 U.S. at 344.). Gant was arrested for driving with a suspended license. That particular offense did not supply a basis for searching the driver’s car because it was not reasonable to believe that evidence of the offense would be found there. However, it will always be reasonable to believe that evidence of alcohol or drugs will be found in the vehicle of a driver arrested for OWI. Opinion, ¶12.
Hinderman noted that whether an OWI arrest supplies a per se basis to search a car and any containers in it “is a highly charged” issue in courts around the country. You can find cases on both sides of the issue in People v. Kessler, 436 P.3d 550, ¶¶21-25 (Co. Ct. App. 2018).
The court of appeals cannot overrule its own prior published opinion. Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997). But Hinderman was an unpublished opinion, so the Cook rule does not seem to apply here. Unpublished opinions issued after 7/1/09 may be cited as persuasive authority but they are “not binding on any court in this state.” §809.23(3)(b). Nevertheless, Coffee and Hinderman suggest a disagreement among Districts 4 and 2 in the court of appeals and that is worthy of SCOW’s attention.
So the court creates a bright-line rule: as a matter of law, after an OWI arrest, the interior of the vehicle, including *any* ‘containers’ is fair game. As an example, ” [I]t indeed would not be surprising for an officer to find such evidence as, for example, a copy of a credit card receipt showing very recent purchases of alcoholic drinks at a local bar…” ¶ 12.
By the same logic, why limit the search just to credit card receipts? Maybe there is a smartphone left in the car–what an evidence bonanza! GPS tracking data showing all the public roads driven and bars visited…timestamped selfies of the driver taking shots at said bars, posted and tagged to Facebook etc with the location ‘checked in’ …drunk text messages…drunk voicemails or Siri/Google voice queries.
Think of all the possibilities to detect all sorts of criminality, beyond just the OWI (for which the officer already has sufficient evidence to effect the arrest in the first place; the vehicle search, let’s be honest, is icing on the cake, or more commonly, just a fishing expedition for contraband).
Why also not open season to search any and all other occupants of the vehicle too? Fellow passenger(s) might be hiding evidence, like credit card receipts or flasks or their own smartphones?
If the driver is intoxicated, then surely the vehicle is going to be towed anyway, so why not rely on the tried-and-true inventory search? Or just get a warrant (esp. if the car is going to be impounded, there is no danger of destruction of evidence).
The Fourth Amendment demands more than this bright-line categorical invasion of privacy.
The opinion focuses on semantics: evidence “might” v. “could” be found (as both conditional/subjunctive auxiliary verbs, is there a material difference?). But rather lose for forest for the trees (or more accurately, the pedantic pine needles), let us go back to the core holding of Gant:
“It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.”
Arizona v. Gant, 556 U.S. 332, 345, 129 S. Ct. 1710, 1720, 173 L. Ed. 2d 485 (2009).
So, eschewing bright-line rules, if in the particular OWI case, there is no *specific, articulable basis* for believing evidence of the OWI might be found in the vehicle, then the police cannot rummage at will, in hopes of finding other, unrelated contraband like drugs or guns etc..
For such specific, articulable basis to search, cf. the factors that a federal court spelled out, in United States v. Reagan, 713 F.Supp.2d 724, 733 n.7. (E.D. Tenn. 2010) :
1. observations of the driver drinking while driving,
2. observations of an open container of alcohol in plain view inside the passenger compartment,
3. statements made by the occupants of the vehicle indicating that an open container is in the passenger compartment,
4. the smell of alcohol emanating from within the passenger compartment,
5. or indications that the driver was traveling from a location such as a recreational area or campground where alcohol is not available unless it is transported in by private vehicle.
These fact-intensive factors, consistent with the corpus of finely-drawn Fourth Amendment jurisprudence, are far superior to the thick-as-chunky-crayon bright-line rule that this appellate court creates.