The District of Columbia Court of Appeals today issued new guidance on when police officers can search a vehicle without a warrant after making a lawful arrest. The court rejected the argument that there are some crimes where a warrantless search is almost always appropriate, instead finding (PDF) that police need specific and "particularized" reasons to think they might find evidence of the crime first.
The government had appealed a District of Columbia Superior Court judge's decision to suppress a gun that police found after making a lawful drunk driving arrest. The three-judge appeals panel upheld that decision.
Larry Taylor was arrested for driving under the influence in December 2010 after he rear-ended another car in Northwest Washington. Police searched his truck and found an unregistered handgun. He didn't contest the drunk driving charge – his blood alcohol level was 0.161, double the legal limit – but after he was indicted on gun possession charges he argued to suppress the gun.
Warrantless searches are unconstitutional under the Fourth Amendment, but the U.S. Supreme Court carved out some exceptions, including after a lawful arrest. But in the high court's 2009 Arizona v. Gant decision, the court tried to narrow those circumstances, finding that warrantless searches of vehicles after lawful arrests had become more of a rule than an exception.
The Supreme Court held that police could still carry out a warrantless search if it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." The justices didn't specify the circumstances that would meet the "reasonable to believe" standard, though, giving rise to the arguments in Taylor's case.
Chief Judge Eric Washington and Associate Judge John Fisher and Catharine Easterly heard oral arguments on April 24. Dailey argued that the government was advocating for what was essentially a "per se rule," giving police leeway to search a vehicle after a lawful arrest for certain types of crimes, including drunk driving. A per se rule, Dailey said, would go against what the Supreme Court was trying to accomplish in the Gant decision.
The U.S. attorney's office said it wasn't in favor of a per se rule, but that there would be types of crimes where officers could base their suspicion on their experience. Furthermore, in this case, the government argued that police officers had several specific reasons for believing they would find evidence of drinking in Taylor's car.
In today's opinion, Fisher wrote that the court rejected the idea of a "per se rule," finding instead that officers "must have reasonable, articulable suspicion" to carry out a warrantless search of a vehicle after a lawful arrest. In drunk driving cases, that means officers need particular evidence that a person is drinking in the car. In Taylor's case, Fisher wrote, while officers knew he was drunk, there was nothing in particular, no "tell-tale sign," that he was drinking in his car.
In the opinion, Fisher cited a few examples to clarify what those signs might be, such as if there was a smell of alcohol in a car or a visible container or a cup with liquid in it. An officer's experience with drunk driving arrests is relevant, Fisher wrote, but "relying uncritically on that experience would amount to endorsing a per se rule governing DUI cases."
A spokesman for the U.S. attorney's office, William Miller, declined to comment. Taylor's attorney, Washington solo practitioner Jonathan Daily, said in a phone interview this afternoon that the decision was "an amazing affirmation of the trial court."
"The decision of the highest court of the District of Columbia will resonate throughout all fifty states as to the protection of the Fourth Amendment," he said.