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Search Incident to Arrest – Automobile, Probable Cause to Search

State v. Cindy R. Billips, 2009AP2493-CR, District 2, 10/5/11

court of appeals decision (1-judge, not for publication); for Billips: Timothy R. Muth, Amy Lynn MacArdy; case activity

Following OWI arrest supported by probable cause, the officer was authorized to search the vehicle for evidence relevant to the OWI arrest:

¶9        Here, it was reasonable for Kinservik to believe that further evidence related to Billips’ OWI arrest might be found in the vehicle.  We agree with the State that this would include alcohol or any other substance that would contribute to the impairment of the driver.[3]  At the time of the search, Kinservik had yet to remove the plastic bag with liquid on top of it.  Further, when he entered the vehicle, Kinservik testified:  “I found what I know to be an end of a marijuana cigar, a blunt, that was in plain view when I entered the vehicle.”[4]  This additional discovery further supports the reasonableness of the search of Billips’ vehicle, including the purse in the back seat.  See Gant, 129 S. Ct. at 1719 (citing New York v. Belton, 453 U.S. 454 (1981) and Thornton v. United States, 541 U.S. 615 (2004), in which the defendants were arrested for drug offenses, as cases in which “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein”).  Under Gant, Kinservik could lawfully search both the vehicle and the purse for further evidence related to OWI.[5]

Moreover, because the search antedated Gant (by several weeks; timing is everything), the search was separately justified as good-faith reliance on Belton, ¶¶10-11. See, State v. Dearborn, 2010 WI 84. Apparently, then, the first rationale, quoted above, relates to a probable-cause based search of the car, as distinct from a Belton-type search-incident rationale. See, California v. Acevedo, 500 U.S. 565, 580 (1991) (“The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.”).

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