W.D.Ky.: An open container doesn’t permit a search of an entire car under automobile exception or search incident

An open container in a car doesn’t grant the police the authority to search the entire vehicle for another open container. It is implausible to believe that another would be found outside of the passenger compartment. United States v. Thomas, 2020 U.S. Dist. LEXIS 10560 (W.D. Ky. Jan. 21, 2020):

In Howton, the inquiry turned on what, effectively, was a per se rule—once an officer views an open container of alcohol in a vehicle, he or she automatically has probable cause to search the vehicle. See United States v. Howton, No. 4:03-CR-00035-JHM (W.D. Ky. Jun. 29, 2004) (DN 61) (“After initiating the traffic stop, Trooper Rule approached the vehicle and observed an open container on plain view. This gave Trooper Rule probable cause to search every part of the vehicle and its contents that could conceal additional open containers of alcohol, including the rear cargo area.”); United States v. Howton, 260 F. App’x 813, 817 (6th Cir. 2008) (same). In light of Gant and the lower court interpretations thereof, the Court now believes that application of such a per se rule is violative of the Fourth Amendment. Instead, courts considering whether an officer has probable cause to believe that evidence of a crime or other contraband might be found in a vehicle must perform a case-specific inquiry taking into account the particular circumstances.

After performing such a particularized analysis, the Court concludes no probable cause existed here to believe that additional open containers would be found in Mr. Thomas’ vehicle after Lieutenant King identified the open alcohol container on the front passenger seat. The alcohol was not found in another cup or another container, separate from its original container. If it was, it would perhaps be reasonable to conclude that the original container would be found elsewhere in the vehicle. However, the container observed was the large original container. Nothing suggests that there would be another container found. There were no other cups or containers scattered around the vehicle. No one in the vehicle appeared to be intoxicated, no field sobriety tests were performed, and there was no evidence that any of the passengers or the vehicle smelled of alcohol. There were no visible wet spots when the passengers stepped out of the vehicle which might indicate open containers of alcohol had been in other parts of the vehicle. Lieutenant King did not testify to having experience recovering additional evidence of open alcohol containers from vehicles in comparable circumstances. Further, the lieutenant did not point to any specific and articulable facts which would warrant the conclusion that additional open containers of alcohol might be found in the vehicle. Accordingly, the Court concludes that in this case, based on these facts, the officers did not possess the requisite probable cause to justify a warrantless search under the automobile exception. That being the case, the firearm, discovered by Lieutenant King because of the unconstitutional search, must be suppressed as fruit of the poisonous tree unless an exception to the exclusionary rule applies.

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