Thursday, October 06, 2011

DUI Law - Wisconsin Says Car Search For Pot OK After OWI Arrest

In State of Wisconsin v. Billips, Slip Copy, 2011 WL 4578555 (Wis.App.), the defendant Billips was stopped for speeding. The officer Kinservik noticed some open bottles in the vehicle, one of which had dark liquid similar to alcohol. The driver was removed and eventually arrested for OWI. Subsequent to the arrest, the officer returned to the vehicle, recovered the open bottle, and also located a marijuana cigar end, a “blunt,” in plain view on the center console of the car. The officer then searched a purse that was in the backseat of the car and found more marijuana inside the purse. The defendant claimed that these items were located during an illegal inventory search that violated the recent SCOTUS case of Arizona v. Gant.
The appeals court reversed, holding that the search of the vehicle was justified to find more evidence of intoxication, including returning to the vehicle to recover the open bottle of possible alcohol:

"In reaching our conclusion, we reject Billips' contention that Kinservik's removal of an open bottle of alcohol prior to her arrest renders the subsequent search of her vehicle unreasonable under Gant. Specifically, Billips contends that at the point of her arrest, “it was not reasonable to believe there would be any further physical evidence of OWI in the vehicle.... [I]f Ms. Billips left intoxicants in plain view in her vehicle, it is not reasonable to assume there were others stashed away out of the deputy's sight.” In other words, Billips argues that because Kinservik had already removed some evidence from her vehicle, it was not reasonable to believe there would be any further physical evidence of OWI in the vehicle. This same argument was considered by this court in State v. Smiter, 2011 WI App 15, ¶ 16, 331 Wis.2d 431, 793 N.W.2d 920, and rejected as “nonsensical.” There, the court observed, “ Gant expressly permits searches for evidence relevant to the crime of arrest and does not require police to stop that search once some evidence is found.” Smiter, 331 Wis.2d 431, ¶ 16."

"Here, it was reasonable for Kinservik to believe that further evidence related to Billips' OWI arrest might be found in the vehicle. We agree with the State that this would include alcohol or any other substance that would contribute to the impairment of the driver.FN3 At the time of the search, Kinservik had yet to remove the plastic bag with liquid on top of it. Further, when he entered the vehicle, Kinservik testified: “I found what I know to be an end of a marijuana cigar, a blunt, that was in plain view when I entered the vehicle.” FN4 This additional discovery further supports the reasonableness of the search of Billips' vehicle, including the purse in the back seat. See Gant, 129 S.Ct. at 1719 (citing New York v. Belton, 453 U.S. 454 (1981) and Thornton v. United States, 541 U.S. 615 (2004), in which the defendants were arrested for drug offenses, as cases in which “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein”). Under Gant, Kinservik could lawfully search both the vehicle and the purse for further evidence related to OWI."

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