This published decision should make for an interesting petition for review. The court of appeals rejects a prior unpublished opinion, State v. Hinderman, to hold:
¶13 . . . [W]hen an officer lawfully arrests a driver for OWI, even if alcohol is the only substance detected in relation to the driver, a search of the interior of the vehicle, including any containers therein, is lawful because it is reasonable to believe evidence relevant to the offense of OWI might be found. Thus, the search of Coffee’s vehicle in this case was lawful and the circuit court properly denied his suppression motion.
During a traffic stop, an officer detected slurred speech, bloodshot eyes, and the odor of alcohol on Coffee, conducted FSTs and then arrested him. Two other officers began searching the vehicle and noticed a tote bag on the floor behind the driver’s seat. They rummaged through it and on the bottom found 2 mason jars filled with marijuana, cell phones, small plastic baggies. Then they searched the trunk and found more marijuana and drug paraphernalia.
Coffee moved to suppress arguing that it was not reasonable for officers to believe that any OWI-related evidence would be found at the bottom of the tote bag behind the driver’s seat. He noted State v. Hinderman where the court of appeals affirmed the suppression of marijuana and paraphernalia that were found in a 3 x 3 inch pouch in a car because the driver had been arrested for OWI and evidence of OWI was not likely to be found in such a tiny container. Now it’s curtains for Hinderman. The court of appeals here holds that it was wrongly decided:
[I]n Hinderman we ultimately relied upon the wrong standard, as Coffee does in this appeal. We erroneously expressed in Hinderman that the standard was whether there was “a reasonable belief that evidence relating to the crime of OWI would be found” in the pouch. See id., ¶11 (emphasis added). In Gant, 556 U.S. at 343, however, the United States Supreme Court established that, in the vehicle context, a search incident to a lawful arrest is permissible “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found’” in the vehicle. (Emphasis added; citation omitted). Our state supreme court has adopted this standard from Gant. See Dearborn, 327 Wis. 2d 252, ¶¶26-27, 29. Opinion ¶9.
The court of appeals noted that under Gant “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” Opinion, ¶10 (quoting Gant, 556 U.S. at 344.). Gant was arrested for driving with a suspended license. That particular offense did not supply a basis for searching the driver’s car because it was not reasonable to believe that evidence of the offense would be found there. However, it will always be reasonable to believe that evidence of alcohol or drugs will be found in the vehicle of a driver arrested for OWI. Opinion, ¶12.
Hinderman noted that whether an OWI arrest supplies a per se basis to search a car and any containers in it “is a highly charged” issue in courts around the country. You can find cases on both sides of the issue in People v. Kessler, 436 P.3d 550, ¶¶21-25 (Co. Ct. App. 2018).
The court of appeals cannot overrule its own prior published opinion. Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997). But Hinderman was an unpublished opinion, so the Cook rule does not seem to apply here. Unpublished opinions issued after 7/1/09 may be cited as persuasive authority but they are “not binding on any court in this state.” §809.23(3)(b). Nevertheless, Coffee and Hinderman suggest a disagreement among Districts 4 and 2 in the court of appeals and that is worthy of SCOW’s attention.