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After lawful arrest for OWI, police may search car for more evidence

State v. Darrell G. Lewis, 2014AP2289-CR, 2/12/14; District 4 (one-judge opinion, ineligible for publication); click here for briefs

After arresting Lewis for OWI, police searched his car and found marijuana. Lewis moved to suppress based on Arizona v. Gant, 556 U.S. 332 (2009), which permits a warrantless search of a car and containers within  incident to arrest when it is reasonable to believe evidence relevant to the crime might be found there. Lewis lost his motion and appeal.

Lewis argued that once police had enough evidence to arrest him for OWI, they had no business searching his car or its sonsole for more evidence of  OWI or anything else. The court of appeals disagreed:

¶11      This argument is without merit.  Gant does not contain or suggest the limiting principle argued by Lewis, and it would be strange if it did, based on the rationale of Gant.  Furthermore, his argument has been rejected by this court.  See State v. Smiter, 2011 WI App 15, ¶16, 331 Wis. 2d 431, 793 N.W.2d 920 (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.”)

Lewis also argued that while officers may search a car for drugs incident to a drug-related arrest, they can’t do it incident to an OWI arrest. That also went nowhere:

¶13      This argument is based on a misinterpretation of Smiter.  The court in Smiter did not conclude that the search was lawful because police could have obtained evidence that might have increased the penalty.  Rather, the court determined that the officers’ search was lawful under Gant because it was reasonable for the officers to believe that they would find evidence relevant to the crime of arrest. Id., ¶¶16-18.

¶14      Here, the undisputed evidence, summarized above, overwhelmingly supports the conclusion that it was reasonable for the officers to believe that they would find evidence in the SUV related to the OWI charge on which Lewis was arrested.  A reasonable inference to be drawn from the open passenger-side window and the location of the bottles outside the SUV, together with other evidence, is that an intoxicated Lewis had very recently tossed or dropped the bottles out of the SUV while parked in the driveway, after purchasing alcohol and driving to this location from the grocery store, linking the interior of the SUV to potential evidence of recent drinking and vehicle operation while intoxicated.

Read more on  Smiter and Gant here.

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