Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from an officer in Arizona. He arrests a driver for DUI, the car is not getting towed, and somebody is coming to pick it up. He wants to know whether he can still search it incident to that arrest.
Hey guys, Anthony Bandiero here, attorney, senior legal instructor for Blue to Gold. Got a question from an officer in Arizona. He says, when can I search a vehicle after I arrest the driver for DUI?
All right, so we’re making some assumptions here. The vehicle is probably not going to be towed. Somebody might come on scene and pick it up, or it’s going to be allowed to be parked. And the officer wants to know, hey look, can I still search it incident to arrest based on the DUI?
What are the two ways to search a car after a DUI arrest?
Well, you can search cars under two circumstances. I mean, besides inventories and consent and so forth. When it comes to these DUIs, number one is you have probable cause. If you have probable cause that there’s evidence in the vehicle, you search it. That’s the motor vehicle exception.
However, there’s another way, and it actually was provided to us by a very famous case called Arizona v. Gant. Arizona v. Gant says that you can search a vehicle if you have reason to believe there is offense-related evidence inside the vehicle.
Is “reason to believe” a lower standard than probable cause?
Let’s parse that out a little bit.
First is, this reason to believe, is it a lower or higher standard than probable cause? Well, it’s lower. It’s close to like reasonable suspicion. That’s the first thing. So you can actually search the car with less than probable cause.
The second component is reason to believe what? That there is offense-related evidence inside the vehicle. So if you’re going to arrest me for DUI, do you have any reason to believe that offense-related evidence could be inside the vehicle? Most of the time the answer is going to be yes.
Why you should never tell a court the search was automatic
But don’t make it automatic. Don’t think that, don’t go to court and say, your honor, if I arrest somebody for DUI I’m automatically going to search that vehicle. Don’t say stuff like that.
Say why you would have a reason to believe that there’s something in the car. The key is articulation.
What gives you reason to believe there is alcohol in the car?
They’re intoxicated and they’re coming from a friend’s house. Well, it’s pretty common that people bring BYOB, they bring alcohol to people’s houses, and then they retain some of it when they leave, because alcohol is expensive. It’s just kind of a common thing. Your friend feeds you some ribs and some burgers and you don’t even leave your leftover alcohol for him to consume later, you cheap bastard.
So stuff like that. Another one, you ask the guy, he’s coming from a bar. Oh yeah. How much did you have to drink? Two beers.
Well, take him at face value. If he really only had two beers and he is clearly over the limit by way more than two beers could do, do you now have a reason to believe that there could be alcohol in that car? Think about it. He’s saying two beers, then how did he get so drunk? He probably maybe has open containers, even though oftentimes these people lie to you about their consumption.
But look, he’s telling you two beers. Could there be a receipt in the vehicle for a bar tab?
The point is that you want to have some articulation. But it’s great, though. This is a great lesson for you. There is actually multiple ways to search vehicles. These are just two of them. Probable cause, and the Gant reason-to-believe search.
So there’s your answer. Short, sweet. Keep them coming.
The short version
- Two routes after a DUI arrest, setting aside inventories and consent: probable cause under the motor vehicle exception, or Gant.
- Gant lets you search “if you have reason to believe there is offense-related evidence inside the vehicle.”
- Reason to believe “is lower. It’s close to like reasonable suspicion.” You can search on less than probable cause.
- “Most of the time the answer is going to be yes. But don’t make it automatic.”
- “Don’t go to court and say, your honor, if I arrest somebody for DUI I’m automatically going to search that vehicle.”
- Coming from a friend’s house, leftover BYOB. Coming from a bar, a two-beer claim that does not match the impairment. A receipt for a bar tab.
- “The key is articulation.”
Related from Blue to Gold
- Search Incident to Arrest
- Does an Open Container Allow Further Search of a Motor Vehicle?
- Could Police Detain a Driver Suspected for DUI on Their Property?
This article is an edited transcript of Roadside Chat Ep. #145. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
