State v. Tracy Smiter, 2011 WI App 15; for Smiter: Mayaan Silver; case activity; Smiter BiC; State Resp.; Reply
During a routine traffic stop, passenger Smiter threw out of the window a substance the officer concluded was a marijuana blunt. Smiter was arrested for possession of marijuana (he concedes on appeal probable cause for the arrest) and the car then searched, resulting in seizure of cocaine. The court upholds the search, on the rationale it was reasonable to believe evidence relevant to the arrest for marijuana might be found in the car. While the court suggests “that the mere discovery of the drug” is enough, ¶15, the court nonetheless stresses Smiter’s furtive movements and the dampness of the blunt (indicating it had been wrapped very recently).
¶18 Because Smiter was arrested for a drug offense, and because the police officers had additional reasons to believe relevant evidence of the drug offense may be located in the Buick—including Smiter’s furtive movements and the damp marijuana blunt—we conclude that the search of the Buick was authorized by Gant. Therefore, the search was lawful, and we affirm the circuit court’s order denying Smiter’s motion to suppress.
The State argued explictly for “a rule that when the police arrest the occupant of a vehicle for a drug offense after finding a controlled substance in the occupant’s possession, the police may search the vehicle for additional controlled substances because in this situation it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle.” And the court may or may not have adopted such a rule: as noted above, there is language that it did, though there are qualifiers as well.
Gant, of course, says that when the arrestee has been removed from reaching distance, the car can’t automatically be searched incident to the arrest. But that case also contains this language: “Consistent with the holding in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), and following the suggestion in Justice SCALIA’s opinion concurring in the judgment in that case, id., at 632, 124 S.Ct. 2127, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” No reason, then, to publish the present case, except to remind all and sundry that in practice Gant changes little if anything – not, especially, if the rule favored by the State is implemented, in which case one rationale for automatic search will simply supplant another.