Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A question from an officer in California. A 911 caller reports a reckless driver, who parks in front of his house and walks off down the block. Officers find him around the corner about ten minutes later and arrest him for DUI. Can they go back and search the car?
Could police search a car for DUI evidence when the driver was found down the street?
All right, hey guys, my name is Anthony Bandiero. I’m an attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you the roadside chat.
This question comes from an officer in California. So we had a 911 call of a reckless driver that parked in front of his house and walked down the block. Upon police arrival the subject matched the description of the driver and was around the corner away from his vehicle.
The driver stated an unknown subject was following him and he was scared, and that’s why he parked. He didn’t park at his house, he just parked down the street a little bit and was walking away. Then the cop says, well, why didn’t you walk right into your house? He says, well, if the guy’s following me, I don’t want the guy to see where I live.
So this story is already kind of BS right there. There’s nobody else around. People are calling in about his driving, so he probably knows the cops are en route.
He had keys in his pocket, and let’s say we found those lawfully. He admitted that he was driving the vehicle. We can tell that he’s intoxicated, and he was arrested for DUI.
The money question for us right now is, could we get into the vehicle and search it? We have the keys and so forth.
What are your options for searching the car?
All right, while there are a few ways to search a vehicle for evidence, number one is with consent. You can always ask this guy for consent.
Number two is probable cause. Do you have a fair probability that there would be evidence of the crime in that vehicle? Well, you have to tell me what it is.
If you could get a warrant, do you already have probable cause?
But I will tell you first that if you think you could get a search warrant, then you have the probable cause. I mean, that’s what probable cause is.
Sometimes I’ll ask cops, and they’ll say, no look, we can’t really search it, but I think I’d just go get a warrant. And I say, well, time out. If you’re telling me you can go get a warrant, then you’re telling me you think you have probable cause. If you have probable cause, you have the motor vehicle exception. So you could search it. You just maybe don’t want to, because you want the confidence that a search warrant gives you, which is completely fine.
But keep those two things separate. Whether you want to, and whether or not you can.
What facts here would actually build probable cause?
So what could give you some probable cause? How about, again, the fact that he just came from the vehicle, he’s walking away from the vehicle, there could be evidence. That’s an indication that he’s trying to distance himself from the vehicle.
Maybe he tells you that he was at a friend’s house. That is an indicator that maybe he brought some BYOB with him. Maybe he tells you he only had two beers at the bar, but clearly he’s more than two beers deep. That gives you information that he potentially has open containers in the vehicle.
Maybe he’s DUI drugs, and you search him and there’s no drugs on his person. In your training and experience, do they have methamphetamine pipes, means of ingestion, needles, drugs for later? The answer is yes, that could be in the car.
So that’s the first question. Do you have probable cause?
But do not go into court and be like, oh your honor, if I have a DUI I get a search, automatic, any other questions your honor? That’s not how it works. Articulate specific reasons about why you think there’s evidence in that vehicle. If there is, you can open it with the keys that you got and search it.
Does Arizona v. Gant help you here?
Another exception is evidence related searches. This comes from Arizona v. Gant. So in Arizona v. Gant they say, look, you can’t just search a car incident to arrest anymore as a matter of routine, but you could search it if you have reason to believe that offense related evidence is inside the vehicle.
Now Arizona v. Gant contemplates that this is a traffic stop. It does not contemplate that we have a guy with a car, he’s arrested for whatever at his house, his car is parked in front of his house, but he had nothing to do with the car, like he wasn’t in the car, and they’re like, oh yeah, I have reason to believe there’s evidence in that car, I’m gonna go and search it. That’s, you need probable cause for that. That’s a better one to use.
Is a “recent occupant” still fair game ten minutes later?
But this one’s a little different though. There is an argument that this is a recent motor vehicle occupant. And there is some case law that if a person was a recent motor vehicle occupant, this is a little older case before Gant, then the vehicle was considered connected to them for search incident to arrest purposes.
Now that old school case doesn’t work anymore for the proposition that if he was associated with it recently we get to search it as incident to arrest. Remember, Gant got rid of that. But Gant also said that we can still search it if we have a reason to believe evidence is inside there.
So it is a question that’s open for debate, about whether or not the person is a recent occupant and you just don’t catch up to him immediately, but he’s already out of the vehicle. Here it was 10 minutes. Whether or not that’s close enough in time, personally, me, nah, probably no. I’m gonna say no on here. I don’t want to be making bad case law. 10 minutes is an eternity, in many respects, for these kind of deals.
So if he got out of the car, shut the door, was walking right down the street, and you got him a few seconds later, maybe a minute at the most, okay, fine, maybe we can stretch it. But 10 minutes, I’m a no-go under that type of search.
So what’s the answer? Probable cause. Do you have probable cause there’s evidence in that car? If the answer is yes, go ahead and search it.
Does California’s stale misdemeanor rule block this?
Finally, the officer brings up stale misdemeanor. In California, it’s really the only state that really even does this, but in California there’s this concept of stale misdemeanor, where you’re not supposed to be making an arrest for something that is stale.
Think of breach of the peace, and you find the guy the next morning, and the breach of the peace was a misdemeanor and you could have arrested him, but the guy somehow got away. Not flight or anything like that, but you just didn’t catch him in time, and you see him the next morning. That’s a stale misdemeanor. You’re not supposed to be making an arrest in California for something that’s not ongoing anymore.
That’s not what’s happening here. There is no stale misdemeanor issue here. First of all, stale misdemeanor applies to the arrest, not the search. The second thing is that we caught this guy relatively quick after the 911 call, so the criminal activity is still ongoing. We’re still trying to do our investigation. We’re supposed to figure out what the heck is going on here.
So no stale misdemeanor violation.
The short version
- The answer runs through probable cause, not through the arrest.
- If you think you could get a search warrant, then you have probable cause. If you have probable cause, you have the motor vehicle exception.
- Keep two things separate: whether you want a warrant, and whether you can search without one.
- Build the PC from specific facts. Distancing himself from the car, a friend’s house and BYOB, more than two beers deep and open containers, DUI drugs and means of ingestion.
- Do not go into court and argue that a DUI automatically gets you a search. That’s not how it works.
- Arizona v. Gant lets you search for offense related evidence, but Gant contemplates a traffic stop, not a car parked at a house the arrestee walked away from.
- The recent occupant theory is open for debate. At 10 minutes, personally, me, nah, probably no. A few seconds to a minute, maybe we can stretch it.
- The California stale misdemeanor rule applies to the arrest, not the search, and nothing here is stale anyway.
Related from Blue to Gold
- What is the Motor Vehicle Exception?
- Can You Arrest for DUI If You Never Saw Them Driving?
- The Stale Misdemeanor Rule
This article is an edited transcript of Roadside Chat Ep. #444. 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.
