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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DUI Appeal of the Day (DAD)- Pretextual Inventory Search Causes Suppression

This case involves a search of a vehicle. In US v. Taylor, --- F.3d ----, 2011 WL 561979 (C.A.8 (Mo.)) Officer Gillespie and her partner responded to a request by a fellow officer to follow a truck and initiate a traffic stop if the driver, who officers later identified as Taylor, committed a traffic violation. Officer Gillespie was informed that Taylor was suspected of involvement in a narcotics transaction and that the narcotics were believed to be in his vehicle. Officer Gillespie observed Taylor fail to signal before changing lanes, and she initiated a traffic stop. When Taylor could not produce a valid insurance card, she arrested him and took him into custody.


Police towing policy dictated that when an individual is arrested for a traffic violation, the officer should give the individual the option to release the vehicle to another driver, allow the vehicle to be left at the scene, or drive the vehicle to the police station. Officer Gillespie did not provide Taylor with these options, however, because of another KCPD policy requiring the impoundment of a vehicle “when the vehicle is known or believed to have been used in the commission of a crime and has evidentiary value.” Based on this policy, Officer Gillespie decided to tow and search the vehicle.



Regardless of under what portion of the policy an impoundment occurs, KCPD policy further requires officers to complete a tow-in report when a vehicle is being towed. The tow-in report must include a “content inventory,” which is a “detailed inventory and listing of items located inside of the vehicle being towed.” When a towed vehicle contains “valuable property in large quantities,” officers must nevertheless generate a detailed inventory, using an additional form if more space is needed to list the contents of the vehicle. Upon searching Taylor's vehicle, Officer Gillespie discovered hundreds of tools, several pieces of equipment, as well as a plastic bag containing approximately 74 grams of powder cocaine, clothing, toiletries, and paper. In completing the tow-in report, Officer Gillespie did not itemize or list the hundreds of tools, but wrote “misc. tools” in the relevant section of the form.

On appeal, the court found that the inventory search was pretextual, especially in light of the officer's failure to specifically itemize all of the contents in the vehicle. It suppressed the evidence. The appeals court noted that:

The search of a vehicle to inventory its contents must nevertheless be reasonable under the totality of the circumstances, United States v. Hall, 497 F.3d 846, 851 (8th Cir.2007), and may not be “a ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). The reasonableness requirement is met when an inventory search is conducted according to standardized police procedures, which generally “remove the inference that the police have used inventory searches as ‘a purposeful and general means of discovering evidence of a crime.’ “ Marshall, 986 F.2d at 1174 (quoting Colorado v.. Bertine, 479 U.S. 367, 376 (1987) (Blackmun, J., concurring)).

The court noted that "[g]iven the hundreds of tools in Taylor's truck, Officer Gillespie's description of “misc. tools” does not constitute a detailed, itemized inventory. Continuing, the court concluded:

Even if police fail to adhere to standardized procedures, the search is nevertheless reasonable provided it is not a pretext for an investigatory search. Hall, 497 F.3d at 852; see also Whren v. United States, 517 U.S. 806, 812 (1996) (noting that an officer's motive may invalidate objectively justifiable behavior in the context of an inventory search). “[S]omething else” must be present to suggest that the police were engaging in their criminal investigatory function, not their caretaking function, in searching the defendant's vehicle. Rowland, 341 F.3d at 780-81. Here, the “something else” is found in the officer's testimony at the suppression hearing. Officer Gillespie testified that the basis for the traffic stop, the arrest, the towing of the vehicle, and the inventory search was the officer's belief that Taylor had narcotics in his vehicle. She also testified that she would not have arrested Taylor, impounded his vehicle, or inventoried the contents of the truck if not for her belief that the vehicle contained evidence of a narcotics crime. This testimony leads us to conclude that the search was conducted because police believed they would find evidence of narcotics in Taylor's truck, and thus the inventory was merely a pretext for an investigatory search.

The dissent stated as follows:

I would hold that Officer Gillespie's good faith generic description of the contents of Taylor's van dispels any suggestion that it was an after-the-fact attempt to insulate the inventory search from a constitutional challenge. Accordingly, I would affirm the order denying the motion to suppress.

Fortunately, this justices 'blind' opinion was outnumbered.


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