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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)