In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court of the United States ruled that an officer may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment” or it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Gant involved an arrest for driving with a suspended license, and the Court concluded that was “an offense for which police could not expect to find evidence in the passenger compartment” of the arrestee’s car.
But what about DWI? If an officer arrests a driver for DWI and secures the driver in the officer’s cruiser, may the officer search the driver’s vehicle because it is reasonable to believe that evidence of impaired driving will be found in the vehicle? Yes, at least on the facts before it, ruled the Court of Appeals of North Carolina in State v. Martinez, __ N.C. App. __, 795 S.E.2d 386 (2016). This post summarizes Martinez and considers searches incident to DWI arrests more broadly.
Facts. A Winston-Salem officer saw a truck traveling 48 m.p.h. in a 35 m.p.h. zone at 12:30 a.m. The officer turned to follow the truck, which pulled into a gas station. The defendant got out of the driver’s side and another man got out of the passenger side. They began walking towards the convenience store that was part of the station and the officer activated his blue lights. The officer instructed the defendant to get back in the truck. The defendant first refused, then went back towards the truck and threw the keys under the vehicle. He denied driving the truck. He smelled of alcohol. After further investigation, the officer arrested him for DWI.
The defendant was then “handcuffed and placed in the rear seat of one of the patrol cars, at least thirty feet away from his vehicle.” Another officer who had arrived on the scene searched the truck, finding beer bottles and a rifle. The defendant, a convicted felon, could not lawfully possess the gun.
Motion to suppress. The defendant was charged with being a felon in possession of a firearm. He moved to suppress, contending that the search was unlawful under Gant. One of the officers testified that he had been trained to search vehicles incident to DWI arrests, and that he found relevant evidence such as open containers of alcohol in “[a]t least fifty percent of these cases.” The trial court denied the motion, concluding that it was reasonable for the officers to believe that evidence of impaired driving would be in the truck.
Ruling on appeal. The case went to trial, the defendant was convicted, and he appealed the suppression issue. The court of appeals affirmed. It began by discussing the prior case of State v. Foy, 208 N.C.App. 562 (2010), in which the court considered whether a vehicle may be searched incident to the arrest of a driver for carrying a concealed weapon. The Foy court said yes, distinguishing Gant and reasoning that “the crime of carrying a concealed weapon is more akin to illegal narcotics possession, where evidence of the crime of arrest may be found in the vehicle, than it is to a simple traffic violation.”
Turning to the case before it, the court ruled that the search was likewise permissible:
Defendant denied ownership, possession, and operation of the vehicle both verbally and by throwing the keys under the vehicle. Based upon the totality of the circumstances, including the strong odor of alcohol on Defendant, Defendant’s effort to hide the keys and refusal to unlock the vehicle, and the officers’ training and experience with regard to driving while impaired investigations, the trial court properly concluded the officers reasonably believed the vehicle could contain evidence of the offense.
Comment and analysis. Martinez did not announce a categorical rule that a DWI arrest will always justify a search of the vehicle used in the offense. The court’s analysis relied on some factors that will not always be present in DWI cases, including the defendant’s denial of driving. It is easy to imagine a case in which the argument for permitting a search would be much weaker. For example, if an officer were outside a bar at 1:00 a.m. and saw a patron leave the establishment empty-handed, stagger to his car, and drive erratically away, there might be little reason to suspect that an open container of alcohol or other evidence would be found in the vehicle.
But that type of case may be relatively rare. Courts in other jurisdictions have generally permitted searches incident to DWI arrests. See, e.g., Taylor v. State, 137 A.3d 1029 (Md. Ct. App. 2016) (collecting cases and, while declining to rule categorically that a DWI arrest always justifies a vehicle search, nonetheless stating that “[i]n this case there was, and, we suspect, in most cases of an arrest for driving under the influence, there is likely to be” reason to believe that a search may reveal “open containers or other evidence related to the offense”); State v. Cantrell, 233 P.3d 178 (Id. Ct. App. 2010) (ruling that when an officer makes a DWI arrest, it is “reasonable to believe that evidence of the offense, e.g.[,] alcohol containers or other evidence of alcohol use,” will be found in the vehicle). I suspect that such searches will be upheld more often than not in North Carolina as well.