OVI (DUI) is not an offense where there is per se evidence to be found in the vehicle by search incident under Gant (or the automobile exception). Something more than just the offense is required to use the stop to get into the car: i.e., something visible through the window, maybe; furtive movements? Here it was heroin, and it was ordered suppressed. [Unanswered, however, is how inventory will play into this because, as a matter of course, DUI arrests lead to a tow and inventory. Inventory was not the issue here.] State v. Eversole, 2017-Ohio-8436, 2017 Ohio App. LEXIS 4835 (3d Dist. Nov. 6, 2017):
[*P36] Eversole does not dispute the lawfulness of her arrest or that the crime of arrest was OVI. As such, at issue in this case is whether Eversole’s vehicle was properly searched incident to her arrest. We conclude that it was not. There is no competent, credible evidence in the record justifying Officer Wehage’s search of Eversole’s vehicle incident to her arrest—that is, there is no competent, credible evidence in the record that the State met its burden of proving that Officer Wehage had reason to believe, based on common-sense factors and the totality of the circumstances, that evidence of Eversole’s OVI arrest was inside her vehicle. Officer Wehage did not articulate any particularized reason why he believed that Eversole’s vehicle contained evidence of OVI. Compare Reagan, 713 F.Supp.2d at 733 (“In this case, Ranger Garner did not articulate any particularized reason why he believed that the Defendant’s vehicle contained evidence of DUI.”). See also Taylor, 49 A.3d at 827 (“There was no testimony that appellee was nervous, that he made furtive gestures, or that he appeared to be attempting to hide something in the vehicle.”); Caulfield, 2013-Ohio-3029, ¶ 32, 995 N.E.2d 941 (“Other than the traffic violation, there was no criminal activity observed, and there was no contraband discovered prior to the search of the vehicle.”).
[*P37] Officer Wehage provided two reasons why he searched Eversole’s vehicle: (1) it is the police department’s “standard policy” to search an operator’s vehicle incident to his or her arrest for OVI and (2) he believed that the vehicle contained evidence relevant to the OVI offense based on his experience with OVI offenses involving narcotics use. Neither of these reasons is particularized to Eversole or the circumstances of this case. See Reagan at 733. See also State v. Sheridan, 3d Dist, Allen No. 1-10-50, 2011-Ohio-6011, ¶ 8 (concluding that it was unreasonable to search Sheridan’s vehicle incident to his arrest because “the officer testified that he conducted the search of the vehicle after the arrest, but did not say why he conducted the search. He merely testified that he went to investigate the vehicle”). Based on our conclusion above that law enforcement may only search a vehicle incident to an OVI arrest when that law-enforcement officer has reason to believe, based on common-sense factors and the totality of the circumstances, that evidence of the offense of the arrest is inside, a police department’s standard policy does not provide a reasonable basis to search and is contrary to Gant. Furthermore, although a law-enforcement officer’s general prior experience is one of the common-sense factors to consider when deciding the reasonableness of his or her belief that evidence of specific crime is located inside a vehicle’s passenger compartment, that general prior experience alone is not enough to establish a reasonable belief that evidence of OVI is contained in a vehicle. See Reagan at 733; Taylor, 49 A.3d at 827 (concluding that a law enforcement officer’s experience involving OVI arrests alone is insufficient to provide a reasonable basis to search the vehicle incident to arrest for OVI).
[*P38] Therefore, there is no competent, credible evidence in the record providing an evidentiary basis for Officer Wehage’s search of Eversole’s vehicle. Compare Leak, 145 Ohio St.3d 165, 2016-Ohio-154, at ¶ 18, 47 N.E.3d 821 (“There is nothing in the record that could have established a connection between the car that Leak was sitting in prior to his arrest and the offense for which he was arrested.”); Caulfield at ¶ 33 (“In this case, the totality of the circumstances would not cause an officer to reasonably believe that the vehicle contained evidence of criminal activity.”). For these reasons, the search of Eversole’s vehicle was unreasonable within the meaning of the Fourth Amendment. Leak at ¶ 18. As such, the trial court erred by denying Eversole’s motion to suppress the heroin as evidence.