The North Carolina Court of Appeals issued an opinion yesterday in a case involving the search-incident-to-arrest exception after the defendant was stopped on suspicion of an open container violation. In State v. Fizovic, the court held that the search was justified, although it took place prior the defendant’s arrest, because it was reasonable for the officer to believe that a search would turn up evidence relevant to the open container violation.
In Fizovic,an officer (who worked for a private security company) was on patrol when he passed the defendant’s car traveling in a parking garage and observed the defendant raise a beer can to his mouth and drink from it. The officer stopped the defendant’s car. When the officer asked for the defendant’s driver’s license, the defendant handed the officer a resident alien card. The officer asked again for the defendant’s driver’s license, and the defendant responded that the license was in the center console. When the defendant began to reach for the center console, the officer asked the defendant to step out of the car out of concern for officer safety.
Two additional officers arrived to assist the first officer with the traffic stop. The first officer patted down the defendant while a second officer assisted in getting the passenger out of the car. The first officer asked the defendant if he had any drugs or weapons in the car, and the defendant responded no.
The officers then searched the center console, looking for the defendant’s driver’s license and any additional containers of alcohol. The officers did not find the defendant’s driver’s license but did find a gun in the inner console of the car. The defendant explained that he did not tell the officers about the gun because he was a convicted felon and it was illegal for him to possess a firearm. The officers then arrested the defendant for possession of a firearm by a felon and for the open container violation.
On appeal, the defendant argued that the trial court erred when it concluded that the warrantless search of the defendant’s car was justified as a search incident to arrest. The court of appeals began its analysis with the Fourth Amendment which protects us against unreasonable searches and seizures. The general rule is that a warrantless search is per se unreasonable. However, there are a few exceptions to this general rule. Under the search incident to lawful arrest exception as explained in the U.S. Supreme Court case Arizona v. Gant (2009), an officer may “search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”
The defendant first argued that the officer’s search of his car was a search incident to citation rather than a search incident to arrest. The court explained that under the U.S. Supreme Court case Knowles v. Iowa (1998), “when a citation is issued for a traffic offense, and a search of the vehicle will not yield any additional evidence of that offense, a warrantless search of the vehicle is unconstitutional.” The defendant in Knowles was issued a citation for speeding. The U.S. Supreme Court held that under those facts, there was neither a concern for officer safety nor a concern for the preservation of evidence, which are the two rationales which historically justify a search incident to arrest. The Court reasoned that with respect to the preservation of evidence rationale, “[n]o further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.”
The court of appeals concluded that Knowles was not applicable to the Fizovic case because, unliked Knowles, a citation was never issued to the defendant in Fizovic. Instead, the defendant was arrested for the open container violation.
The defendant then argued that because the officer admitted that at the time of the search he intended to issue only a citation, the search should be treated as one incident to a citation. The court of appeals cited an earlier court of appeals case State v. Wooten (1977) as authority that “in certain circumstances, the search incident to arrest exception may apply to a search conducted prior to arrest.” The court held in Wooten that “provided probable cause to arrest existed prior to the search and it is clear that the evidence seized was in no way necessary to establish the probable cause,” a search prior to an arrest can be justified as a search incident to arrest. The defendant in Fizovic did not challenge the trial court’s determination that the officer had probable cause to arrest him for an open container violation at the beginning of the stop. Therefore, the court concluded that “the search may still be justified as incident to arrest, even though the arrest occurred after the search.”
Finally, the defendant argued that even under the search incident to arrest exception, the search was not justified because the officer had already obtained sufficient evidence to prosecute the open container violation. However, the court explained that under the discovery-of-evidence prong, “[t]he question is not whether the officer has obtained the evidence minimally necessary to convict the defendant of the offense, but rather, whether it is reasonable to believe that any evidence relevant to the crime will be found in the vehicle.”
The case of an open container violation is different than the case of either a speeding violation or a driving with a revoked license violation, which are offenses “for which it is unreasonable to expect to find any related evidence.” In contrast, in the case of an open container violation, “there may exist tangible evidence of a violation of open container laws -- specifically, open containers of alcohol -- that an officer may reasonably expect to find in a suspect’s vehicle.”
Therefore, the court concluded that the trial court did not err in denying the defendant’s motion to suppress.
If you have been charged with DWI, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.