DC: Mere open container violation does not support a search incident of a car

Mere open container violation does not support a search incident of a car without more. United States v. Nash, 2014 D.C. App. LEXIS 393 (September 25, 2014):

Second, the United States cites numerous decisions upholding automobile searches for additional evidence after the police found one or more open containers of alcohol in a vehicle. Those decisions give us pause but ultimately do not persuade us. In most of the cited decisions, other circumstances — not present in Mr. Nash’s case — supported an inference that additional evidence might be found in the vehicle. See, e.g., People v. Souza, 19 Cal. Rptr. 2d 731, 732-35 (Ct. App. 1993) (driver was operating car erratically, officer could smell alcohol coming from car, another passenger was in car, and two-thirds empty bottle of tequila was located behind driver’s side headrest, inside a torn-open box of Budweiser beer). Other decisions are similar to the Seventh Circuit’s decision in McGuire, in that they appear to apply a per se rule that cannot be reconciled with the approach this court adopted in [United States v. Taylor, 49 A.3d 818, 821 (D.C. 2012)]. See, e.g., State v. Collard, 414 N.W.2d 733, 734-36 (Minn. Ct. App. 1988) (search of car for further evidence justified by presence of single open bottle of beer in car; “upon observing evidence in plain view, a warrantless search of the remainder of the passenger compartment is justified”).

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