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OWIs are serious business, but let’s not forget privacy rights

Adam P. Nero

Adam P. Nero

By Adam P. Nero


“Should police automatically have the right to search the vehicle of someone arrested on suspicion of OWI? Or should they have to show that they have some reason, particular to the driver who was arrested, to believe that OWI-related evidence will be found in the vehicle?”


The Supreme Court said in New York v. Belton that police get to search your car after a lawful arrest. 453 U.S. 454 (1981). Justice Brennan dissented.

Almost three decades later, Justice Stevens, writing for the majority in Arizona v. Gant, pronounced that no such blanket rule exists under the Fourth Amendment. 556 U.S. 332 (2009). However, Stevens included some enigmatic language, stating that in some cases, “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.”

Now it’s 2016 and no Wisconsin case has dealt with the question of whether operating while intoxicated counts among the per se offenses that would give the police reason to search your car after arrest. At least one very recent case deliberately dodged the question. See State v. Hinderman, 2015 WI App 28, ¶ 13, 361 Wis. 2d 287, 862 N.W.2d 620 (“Frankly, it is not necessary for us to address this highly charged issue here. … As the Supreme Court did in Gant, we wait for another day to take up this issue.”) (unpublished).

Nationwide, meanwhile, courts are divided. See United States v. Reagan, 713 F.Supp.2d 724, 733 (E.D. Tenn. 2010) (finding for the defendant, but collecting cases falling on both sides of the divide).


Without more, the mere fact of an OWI arrest is an insufficient basis for police officers to believe that they will find anything of evidentiary value in an arrestee’s vehicle. Thus, before searching those vehicles, police should be required to point to some fact, particular to that driver, supporting the conclusion that evidence — presumably an open or empty alcohol container — lies within. Should Wisconsin courts begin to hold otherwise, they would create a new “OWI arrest” exception to the warrant requirement. Wisely, the Supreme Court is loath to create new exceptions, and calls the existing exceptions “jealously guarded,” “carefully delineated,” “tightly circumscribed,” and so forth.

The sounder rule requires the surrounding circumstances to support an officer’s decision to search an OWI arrestee’s vehicle. Consider the following three examples.

Driver No. 1

An officer observes Driver No. 1 leave a tavern with a brown bottle in hand, walk toward an automobile and drive away. The officer stops the vehicle, sees no brown bottle in plain view and arrests the driver for OWI after further investigation. He searches the car and finds the brown bottle in the center console. Was this a lawful automobile search under the Gant case? Yes. The officer had a reason, particular to Driver No. 1, to suspect an open container.

Driver No. 2

An officer watches Driver No. 2 leave a tavern, walk empty-handed to her car and drive away. The officer pulls over the driver for a defective tail lamp, smells alcohol, runs her through field sobriety tests and arrests her. The officer then puts the driver in the back of his squad car, searches the vehicle and finds contraband. Was this a lawful search of an automobile under the Gant case? Let’s table that for a moment.

Driver No. 3

An officer gets back into his squad car, immediately notices Driver No. 3 swerving all over the road and pulls him over. The officer eventually arrests him for OWI, puts him in the squad car and searches Driver No. 3’s vehicle. He finds contraband in the center console. Was this a lawful automobile search under the Gant case? Let’s answer that question with a question.

Does the officer have a weaker reason for suspecting that Driver No. 2 has open containers than he does for Driver No. 3?

Absolutely not.

He knows the same information about each driver. Despite Driver No. 2’s stop at the bar, she had a starting point, a destination and a return trip during which she might have been drinking. So did Driver No. 3, but we just don’t know his starting and ending points. Maybe Driver No. 2 was drinking on the way to the bar. Maybe Driver No. 3 was drinking on his way to … wherever. Maybe Driver No. 2 had a flask she planned to drink on the way back. Maybe Driver No. 3 did, too. Maybe … possibly … anything is possible. Who knows? Not me, and not the officer, either.

That’s why not all vehicle searches incident to an OWI arrest are constitutional. They rely upon exactly the sort of blanket exception that the U.S. Supreme Court criticizes when differing from the Wisconsin Supreme Court. See, e.g., Richards v. Wisconsin, 520 U.S. 385 (1997) (overturning State v. Richards, 201 Wis. 2d 845, 549 N.W.2d 218 (1996)); Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013) (abrogating State v. Bohling, 173 Wis. 2d 529, N.W.2d 399 (1983)).

Setting aside the question of whether Gant’s “reasonable to believe” standard referred to probable cause or to reasonable suspicion, the Constitution tolerates neither blanket exceptions nor intrusions stemming from hunches.

No one can deny the innumerable tragedies caused by impaired drivers, but that will never be a compelling reason to trivialize society’s shared privacy interest. Rather than weaken Fourth Amendment protections with blanket exceptions, we should make police do what police do — gather evidence.

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