United States v. William A. Nash, Jr. and David Lewis, Nos. 13-CO-1299 and 13-CO-1456 (decided September 25,
2014).
Players: Associate Judges Fisher and McLeese, Senior Judge
Pryor. Opinion by Judge McLeese. PDS for Mr. Lewis. Cecily E.
Baskir for Mr. Nash. Trial Judge Robert I. Richter.
Facts: In these two unrelated cases, the police conducted
car searches after observing individuals possessing open containers of alcohol
(POCA). The trial court found both car searches illegal and suppressed
the guns and other contraband that police found while searching the cars.
The government sought interlocutory review of those rulings. On appeal,
the DCCA upheld the suppression ruling in Mr. Nash’s case but reversed in Mr.
Lewis’s case. In both cases, the defendants did not appear to police to
be intoxicated. The relevant differences are as follows:
- Officer Parrish saw an open can of Four Loko in the center console. He confirmed by smell that the can contained alcohol and observed that it was less than half full. Mr. Nash was placed under arrest for POCA. Officer Parrish then searched the car for additional alcohol. During the search, he found a handgun in a clear box on the front passenger seat and ammunition in the trunk.
- Police officers began following Mr. Lewis’s car when they observed that one headlight was not working. They pulled the car over after determining that Mr. Lewis had a suspended license. During the stop, Officer Alto observed an open, half-full bottle of Patron tequila in the center console cup holder. Mr. Lewis’s passenger said that the bottle was hers. Police arrested Mr. Lewis for driving on a suspended license. They then searched the car for additional open containers of alcohol because, according to Officer Alto, “the majority of times when there is a tequila or liquor type of beverage in a vehicle, they’ll be drinking through cups.” Another officer agreed that “people rarely drink directly out of Patron bottles and instead use cups.” Police found a handgun and ammunition in a bag in the back seat.
Issue
#1: In what circumstances may police
conduct a car search incident to an arrest for POCA?
Holding:
A car search incident to an arrest
for POCA is illegal unless the police can articulate specific reasons to
believe that they will uncover additional evidence of POCA during the
search.
Issue
#2 (from Mr. Lewis’s case only): May
the police conduct a search incident to arrest for POCA before effectuating the
arrest?
Holding:
Yes. The police had probable
cause to arrest Mr. Lewis’s passenger for POCA, so it is immaterial that they
searched the car before actually arresting her.
Of Note:
- In Mr. Nash’s case, there was no evidence that the police officers had any particular reason to think that additional cans of Four Loko or other evidence of POCA would be in the car. In contrast, in Mr. Lewis’s case, police testified that they had reason to believe they would uncover evidence of POCA during the search because of the characteristics of tequila drinkers and because the tequila was found in the center console of the car: According to the officers, people usually use cups to drink tequila, so the police had reason to believe they would find cups containing tequila once they observed the open Patron bottle. In addition, the court reasoned that the location of the bottle in the center console could lead police officers to reasonably conclude that the occupants were drinking the liquor. So, try to distinguish your case if it involves liquor located somewhere in the car other than the center console.
- Beware the DCCA’s other holding in Lewis – that the search of the car was “incident” to Ms. Gibbs’ arrest even though she had not yet been arrested – as it expands the search incident to arrest exception to the warrant requirement. Under this reasoning, as long as the police had probable cause before the search and ultimately do arrest the suspect, it doesn’t matter whether the search is actually incident to an arrest. NG
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