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Vehicle Search Incident to DWI Arrest in North Carolina

Can an officer search your vehicle if you are arrested for DWI in North Carolina? The US Supreme Court held in Arizona v. Gant (2009) that the police may search your car incident to an arrest only if either 1) the arrestee is unsecured and within reach of the passenger compartment of the vehicle at the time of the search or 2) it is reasonable to believe that the vehicle contains evidence of the offense of arrest.

The Fourth Amendment protects us against “unreasonable searches and seizures.”  Searches or seizures conducted without a warrant are per se unreasonable.  However, there are a few exceptions to this general rule that have been established over the years through case law.  One exception to the requirement of a warrant for searches and seizures is when a person is arrested.

The US Supreme Court created the rule in Chimel v. California (1969) that “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.””  Later, in New York v. Belton (1981), the US Supreme Court looked at the search-incident-to-arrest exception in the context of a vehicle search to determine a “workable defini­tion of ‘the area within the immediate control of the ar­restee’ when that area arguably includes the interior of an automobile.” In Belton, the Court held that “when an officer lawfully arrests “the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” and any containers therein.”  Important to that holding was the assumption “that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach.’””

In Gant, the defendant was arrested on an outstanding warrant for driving with a suspended license. The defendant was then handcuffed and secured in the back of a police car, and two other arrestees were secured in the backs of two other police cars. There were a total of five officers at the scene of the arrest, two of whom searched the defendant’s car and found a gun and a bag of cocaine in the pocket of a jacket in the backseat.

Prior to Gant, courts generally applied the rule in Belton “to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” In Gant, the Court held that police may search a vehicle “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” or it is “rea­sonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

Under the facts of Gant, neither of these exceptions existed and the search was not authorized. The Court distinguished the facts in Belton because in that case, there was “a single officer confronted with four unsecured arrestees” while in Gant “the five officers ... outnumbered the three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched [the defendant’s] car.”  Furthermore, the defendant in Gant was arrested for driving with a suspended license, which was “an offense for which police could not expect to find evidence in the passenger compartment of [the defendant’s] car.”

In the 2012 case, State v. Mbacke, the North Carolina Supreme Court looked at the “reasonable to believe” standard set out in Gant and equated it to “the objective “reasonable suspicion” standard sufficient to justify a Terry stop.” The North Carolina Supreme Court held in Mbacke “that when investigators have a reasonable and articulable basis to believe that evidence of the offense of arrest might be found in a suspect's vehicle after the occupants have been removed and secured, the investigators are permitted to conduct a search of that vehicle.”

The facts of Mbacke are as follows: The

defendant was arrested for the offense of carrying a concealed gun. The arrest was based upon defendant's disclosure that the weapon was under his shirt. Other circumstances ... such as the report of defendant's actions the night before and defendant's furtive behavior when confronted by officers, support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant's vehicle.

The court held that the search of the defendant’s vehicle was permissible under Gant. However, the court cautioned that the holding did not mean that “an arrest for carrying a concealed weapon is ipso facto an occasion that justifies the search of a vehicle.” Instead, “the “reasonable to believe” standard required by Gant will not routinely be based on the nature or type of the offense of arrest and … the circumstances of each case ordinarily will determine the propriety of any vehicular searches conducted incident to an arrest.”

There have not yet been any North Carolina Court of Appeals cases which have looked at vehicle searches in the context of a DWI arrest post-Gant. Courts in other jurisdictions which have applied Gant in a DWI context have almost all found such searches lawful. Some specific facts that courts have used to base their reasoning include the smell of alcohol from the vehicle or a visible cup which might contain alcohol. But other courts have held that searches are lawful merely because it is reasonable to believe that there might be evidence of drug or alcohol use in the car following a DWI arrest.

Given the North Carolina Supreme Court’s warning in Mbacke about the reasonableness of the search being based on the facts of the case rather than the type of offense, it seems that there should be specific facts that officers must identify in North Carolina which cause them to reasonably believe that there is evidence of the impaired driving in the vehicle.

If you have been arrested for DWI, contact an attorney as soon as possible at Rosensteel Fleishman, PLLC (704) 714-1450.

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