By David Daggett

In a reported opinion originating in Dorchester County, Taylor v. State, No. 494, September Term, 2014 (Filed: July 30, 2015), opinion by Judge Zarnoch, the Court of Special Appeals recently addressed an Arizona v Gant, 556 U.S. 332 (2009) argument related to a vehicle search incident to a DUI arrest.

The original trial was successfully prosecuted in the Dorchester County Circuit Court by ASAs Maurice Nelson and Jesse Hicks, resulting in an appeal by the defense. The facts were as follows:

At approximately 1:00 a.m. on March 1, 2013, Officer Chad Mothersell was patrolling the chilly, windswept streets of Cambridge. He happened upon a vehicle travelling about 45 m.p.h. in a posted 25 m.p.h. zone. He also observed the operator fail to come to a complete stop at a stop sign. As Ofc. Mothersell approached the vehicle, he noted that the appellant (Efrain Taylor) was the operator and sole occupant. The minor odor of an alcoholic beverage was noticed emanating from the appellant’s breath and person. The officer observed slurred and difficult to understand speech, as well as bloodshot, glassy eyes. When asked from where he was coming, the appellant indicated the Point Break Beach Bar in Cambridge.

Taylor was asked to step from his vehicle and perform some standardized field sobriety tests – the HGN, walk and turn and the one leg stand. As they were not performed satisfactorily, Taylor was placed under arrest for suspicion of DUI. By that time, another officer had arrived upon the scene and conducted a search of the vehicle while Ofc. Mothersell advised the appellant of his DR-15 Advice of Rights. Unfortunately for Mr. Taylor, located in the console were 76 small baggies of powdered cocaine, totaling 34.3 grams. Taylor also had $1,045 in cash in his pocket and wallet. While that certainly played a part in his PWID charges, it was irrelevant for this analysis (though the appellant may take issue with that statement.)

At trial, Taylor testified that on the night of the arrest he had consumed one can of Bud Ice (no hoity-toity, micro-brewed beer for this guy) at the Point Break Beach Bar and that he was on his way home; had borrowed the vehicle from another man; was ignorant of the cocaine inside the vehicle; and the cash on his person was from some sort of tax lien transaction. Regarding the failed SFSTs, Taylor said he was wearing contact lenses; his difficulties with the OLS test were due to a past fractured foot; and that, in his opinion, he had passed the W&T test. Taylor was convicted of a number of counts and received a 20 year active sentence for the PWID as a subsequent offender. The DUI sentence was to run concurrently.

Legal Issues Presented

The questions presented on appeal were whether the trial court had erred in denying his motion to suppress the fruits of the vehicle search and whether he was properly sentenced as a second-time offender on the PWID charge. For purposes of this blog we will focus solely on the former.

Level of Suspicion

Taylor challenged the search of his vehicle under the Fourth Amendment and primarily relied on the holding of Arizona v. Gant. That case held that police may search an automobile incident to the arrest of its driver or passenger for two reasons: 1.) Incident to a recent occupant’s arrest, only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search; and 2.) When it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle. A more complete analysis of Gant can be found below.

The Court of Special Appeals pondered what level of suspicion is required to show a “reasonable belief”: Whether it be preponderance of the evidence, probable cause, or reasonable suspicion akin to a Terry v. Ohio stop-and-frisk?

The COSA opined (@ page 9) that “reasonable to believe” must necessarily require less suspicion than does probable cause (and ergo, preponderance of the evidence) “because otherwise Gant’s evidentiary rationale would merely duplicate the ‘automobile exception’” and that in order to search a vehicle either incident to arrest or under the automobile exception, probable cause would need to exist to believe that the vehicle contained evidence of criminal activity. In other words, the Supreme Court, in fashioning the Gant opinion, wouldn’t have needed to include the additional language, “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” The Supreme Court, in fashioning the Gant opinion, could simply have limited their opinion to a Chimel analysis and held that incident to a recent occupant’s arrest, a search can be conducted only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Of course, that would have led to some absurd scenarios. Under what circumstances would an officer allow an arrestee to be unrestrained and within reaching distance of the vehicle while the officer is searching said vehicle?

The Court of Special Appeals in Taylor determined that a “reasonable to believe” suspicion for a Gant-like search of an automobile incident to arrest is comparable to the level of “reasonable suspicion” required for a stop and frisk under Terry. In doing so, they reached the logical conclusion that the level of suspicion for a Terry stop and frisk is considerably less than proof of wrongdoing by a preponderance of the evidence and is obviously less demanding than that for probable cause.

The Court then turned to the next step in its analysis.

Factors Establishing Reasonable Belief

Whether a belief is “reasonable” requires a totality of the circumstances analysis. The COSA determined the following factors to be appropriate when developing a reasonable belief that evidence of the crime being investigated will be found in the vehicle:

A police officer’s training and experience

An officer should be allowed to draw upon his/her own experience and specialized training to make inferences and deductions about the cumulative information available to them.

The lack of an innocent explanation for a driver’s seemingly illicit behavior

An officer cannot simply assert that “presumably innocent behavior” provides a reasonable belief that evidence of the crime of arrest is in the vehicle. To do so would allow the officer to determine apparently innocent behavior to be suspicious, thereby turning a reasonable belief into a “hunch.”

In analyzing this factor, the Court of Special Appeals cited Ferris v. State, 355 Md. 356 (1999). In Ferris, a driver was stopped for speeding at 1:06 a.m. and appeared to have bloodshot eyes and appeared nervous, but there was no odor of alcohol. After the speeding citation was issued and Ferris’ license returned to him, Ferris was asked if he would exit his vehicle and answer some questions. After initially denying any drug usage, upon further questioning Ferris relented and admitted that he and a passenger had smoked a joint earlier in the evening and that the passenger possessed a small amount of marijuana. After the marijuana was turned over by the passenger, the vehicle was searched incident to arrest, with much more being found.

The Court in Ferris determined that the facts articulated by the officer did not amount to a reasonable suspicion of criminal activity that would justify a prolonged detention. Bloodshot eyes and excessive speed are not indicative of impairment. There was no indication that the officer ever explained how his training and experience led him to believe that the arrestee’s behavior was consistent with illegal activity. Because the officer could not explain why apparently innocent behavior established reasonable suspicion of criminal activity, the second detention (asking Ferris to get out of his vehicle and answer some questions) was deemed to be impermissible, as it was based not upon reasonable suspicion, but on a mere hunch.

The nature of the crime of arrest

Certain offenses, by their very nature, involve evidence that an officer could reasonably believe is in a vehicle.

In analyzing this third factor, the COSA cited a number of conflicting rulings from other jurisdictions, including Idaho (State v. Cantrell, 233 P.3d 178 (2010)), Kansas (State v. Ewertz, 305 P.3d 23 (2013)) and Arkansas (Cain v. State, 373 S.W. 3d 392 (2010)), which all stood for the proposition that a DUI arrest, by its very nature, provides a reason to believe there will be other evidence of alcohol in the vehicle and that an officer’s suspicion that alcohol containers would be in the vehicle flowed simply from the nature of the offense.

By contrast, the U.S. District Court for the Eastern District of Washington (U.S. v. Grote, 629 F. Supp. 2d 1201 (2009)) and the U.S. Court of Appeals for the District of Columbia (U.S. v. Washington, 670 F. 3d 1321 (2012)) held that searches incident to a DUI arrest will only be upheld when there was some other indication that alcohol containers would be in the vehicle, such as plain view or the odor of alcohol emanating from the interior of the vehicle. Also, the U.S. District Court for the Eastern District of Tennessee (U.S. v. Reagan, 713 F. Supp. 2d 724 (2010)) and the District of Columbia Court of Appeals (U.S. v. Taylor, 49 A. 3d 818 (2012)), which held that, absent additional indicators that alcohol was being consumed in the vehicle, a search of the vehicle incident to a DUI arrest was unreasonable. These last two opinions gave as examples a police officer observing a man stumbling drunk out of a bar or house, getting into his vehicle, driving away and immediately being pulled over, as an unreasonable belief to conduct an evidentiary search of the vehicle.

Some examples of facts that would lead to a reason to believe that evidence of a DUI is located within the passenger compartment of a motor vehicle would be observations of the driver actually drinking while diving, observations of an open container of alcohol in plain view inside the passenger compartment, statements made by the driver or occupants of the vehicle that an open container is in the passenger compartment, the smell of alcohol emanating from within the passenger compartment or indications that the driver was traveling from a location such as a recreational area, park or campground where alcohol is not available unless it is transported in by private vehicle. United States v. Reagan, 713 F. Supp. 2d 724, 733 (2010)

The Court of Special Appeals of Maryland in Taylor, while admitting that they were unable to “reconcile these divergent holdings,” nevertheless determined it to be clear that (1) an officer’s training and experience is an important, though not dispositive factor in determining a reasonable belief; (2) the lack of any innocent explanation for apparent intoxication in a vehicle may be grounds for reasonable suspicion; and (3) unless there are contrary indications, it is not unreasonable to think an intoxicated driver became intoxicated in the vehicle. Taylor @ 16

The Court stressed that in Maryland, since a DUI may be proved by circumstantial evidence (and that the presence of wholly or partially-consumed alcoholic beverage containers may be circumstantial evidence of DUI), officers may search for evidence of alcohol containers to establish that the arrestee was under the influence. The COSA lent credence to Owens v. State, 93 Md. App. 162, 166-67 (1992), that three partially consumed beer cans were circumstantial evidence of DUI, as well as White v. State, 142 Md. 535 (2002), that mentioned field sobriety tests, the officer’s observations of the driver, the driver’s statements regarding alcohol consumption and the discovery of a full bottle of whiskey in the vehicle as evidence that can be used to prove a DUI.

The COSA determined that as part of his search for DUI evidence, Ofc. Mothersell had to determine whether the instruments of the offense (the alcohol) were in Taylor’s vehicle. That was the only place that Ofc. Mothersell knew where he had been. Had the suspect been drinking anyplace else other than in his vehicle would only have been speculation. The Court determined that in this scenario, it was reasonable to believe that the suspect had been drinking in the place where he was stopped.

The COSA extended its justification by holding that as it is a widely known fact that being under the influence of alcohol is not far removed from the act of drinking, and that alcohol dissipates quickly in the bloodstream, that it logically follows that when alcohol is suspected to be in a person, it has likely not been there very long. As Taylor was operating his vehicle, it was not unreasonable to believe, therefore, that he had recently consumed alcoholic beverages.

The Court also noted that in many jurisdiction in Maryland, certain bars will allow their patrons to purchase alcoholic beverages on-site to consume elsewhere. It would not be unreasonable then, to conclude that a bar patron in Maryland might have left the bar with an intoxicating package good and topped off the night’s consumption on the drive. Taylor @ 20.

The Court did note one additional rationale for upholding the search, which I must admit I’m not quite sure I follow. On page 20 of the opinion, the Court stated:

In addition, it was reasonable to search for additional evidence of inebriation even after Taylor failed the sobriety tests; as Mothersell explained, “I wanted to make sure there’s no other alcohol in the vehicle for the probable cause for my DUI stop.” That way, even if Taylor had successfully challenged a chemical test or the field sobriety tests, the presence of an alcoholic beverage container would have provided additional evidence to establish Taylor’s guilt.

This would appear to justify the search on the grounds of looking for evidence to bolster the State’s case, which is certainly not one of the delineated exceptions to the warrant requirement. The probable cause for the stop – or more correctly put, reasonable articulable suspicion – had to be based upon the actual observations of the officer, not speculation of what might be in the vehicle. Again, I might be totally misinterpreting that paragraph. It wouldn’t be the first time.

The COSA concluded the DUI portion of the Taylor opinion by noting that its holding was based upon the totality of the circumstances, specifically: the officer’s experience with inebriated motorists; the temporal nexus between alcohol consumption and inebriation; the fact that Ofc. Mothersell never observed Taylor drinking in a bar; and the fact that the presence of open alcoholic beverage containers in a vehicle is a means of proving DUI in Maryland.

Conclusion

The Taylor opinion confirms what we already believed to be the proper interpretation of the SCOTUS opinion in Arizona v. Gant regarding the search of a vehicle incident to arrest. Gant, while somewhat limiting the scope of Belton, nevertheless left open the ability of the police to conduct a warrantless search of a vehicle’s passenger compartment “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Certainly it is reasonable to believe that evidence of impaired driving will be found in the vehicle. The same argument could probably be extended to a driving suspended or revoked case (in Maryland), as it is reasonable to believe that evidence of the crime (unpaid tickets, letters from the MVA) would be found in the vehicle.

When putting together their basis for “reasonable belief” that alcohol is in the vehicle, law enforcement officers should include in their Statements of Probable Cause/Alcohol Influence Reports – and the prosecutor should question the officer on the stand about – the following information:

  • The officer’s training, knowledge and experience regarding DUI investigations;
  • The frequency (in the officer’s experience) in which open containers have been found in vehicles;
  • Where the odor of alcohol was coming from;
  • Whether any open containers were seen in plain view;
  • Was alcohol spilled on the suspect’s clothing;
  • Document statements of the suspect regarding where and when he was drinking;

The Court of Special Appeal’s holding in Taylor seems to indicate that a search of the passenger compartment of the vehicle will be justified incident to impaired driving arrests, except perhaps in those situations in which the suspect is observed by the officer stumbling out of a bar, apparently inebriated and without an apparent package of alcohol in his hand, though even that scenario could justify a search if the suspect indicates that he had been driving and drinking and then stopped in a bar.

Arizona v. Gant, 556 U.S. 332 (2009)

In the case of Arizona v Gant, Rodney Gant was arrested for driving with a suspended license. He was subsequently handcuffed and locked in the back of a patrol car. Police officers then searched his car and discovered cocaine in the pocket of a jacket on the backseat.

The Arizona Supreme Court held that because Gant could not have accessed his car to retrieve weapons or evidence at the time of the search, the search incident to arrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v. California, 395 U.S. 752 (1960) and applied to vehicle searches in New York v. Belton, 453 U.S. 454 (1981), did not justify the search of Gant’s vehicle.

Taking cert, the United States’ Supreme Court unfortunately agreed with the conclusion of the Arizona Appellate Court, holding that, under Chimel, police may search incident to arrest only the space within an arrestee’s “‘immediate control,'” meaning “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S., at 763.

The Court determined that the safety and evidentiary justifications behind Chimel’s reaching-distance rule (wing span) determine Belton’s scope. Accordingly, the Supremes held in Gant that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. It is imperative to note, however, that while Gant added limiting language to Belton’s exception for a warrantless search of a vehicle’s passenger compartment, a search conducted absent a warrant is still permissible “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’” Gant @ 344. The Supremes just didn’t think that in this case evidence of the offense of driving suspended would be located in the vehicle, though certainly evidence of letters from the MVA or unpaid traffic citations could conceivably have been found. In Maryland, that would help satisfy the “knowledge” element under McCallum. Apparently, that isn’t the law in Arizona.

The Gant opinion stated that in many situations, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. But in other situations, such as those in Belton and Thornton v. United States, 541 U.S. 615 (2004), (See J. Scalia’s concurring opinion) the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein if there is a likelihood that evidence of the crime will be found. As Justice Scalia wrote in Thornton, “If Belton searches are justifiable, it is not because the arrestee might grab a weapon or evidentiary item from his car, but simply because the car might contain evidence relevant to the crime for which he was arrested.” Id at 630.

AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEY’S OFFICE FOR SPECIFIC LEGAL ADVICE RELATED TO THIS SUBJECT.