POLICE / PROSECUTOR UPDATE - NOVEMBER 1998
Search of Vehicle
Inventory Search
Search Incident to Arrest
This month we will look at a recent Court of Appeals opinion
dealing with searches. A police officer in Clark County stopped
the defendant's vehicle after observing it make an illegal left
turn. The officer asked the defendant to exit the vehicle and
then noticed that she had bloodshot eyes and smelled of alcohol.
The officer administered three field sobriety tests which the
defendant failed. She admitted drinking four or five beers. The
officer administered a portable breath test. Because the test
result was .07% BAC, the officer asked the defendant to take another
test at police headquarters, to which she consented. The officer
then handcuffed her and placed her in his patrol car. He called
a tow truck to impound the defendant's vehicle and, while waiting
for the tow truck, searched the vehicle. Among the items found
was $1,976 in cash and 11 ounces of cocaine. The defendant moved
to suppress this evidence.
Two exceptions to the search warrant requirement were discussed.
The officer testified that he "did a routine inventory" of the
vehicle. However, the inventory search exception has been narrowed
by the courts to apply only where there exists a firmly established
police policy requiring that an impounded vehicle be inventoried.
There was no such policy in this case, so this exception did not
apply.
The second exception discussed is the search incident to arrest
exception, under which a police officer may conduct a search "of
the arrestee's person and the area within his or her control."
The search of a suspect's vehicle under this exception is valid
even if the suspect has been "removed from the scene" and her
vehicle is no longer in her area of control.
Under this exception an arrest has occurred when a police officer
"interrupts the freedom of the accused and restricts his liberty
of movement." Even when the police officer does not tell the defendant
she is under arrest prior to the search, that fact does not invalidate
the search so long as there is probable cause to make an arrest.
Finally, the subjective belief of the police officer that he may
not have probable cause to arrest a suspect when he handcuffs
the suspect has no legal effect (the subjective belief of the
officer that he has probable cause to arrest also has no legal
effect).
In this case the officer had probable cause to arrest the defendant
for operating a vehicle while intoxicated. The defendant had committed
a traffic violation by turning left from a right-turn-only lane.
Thus, the initial stop of the vehicle was justified. The officer
observed that the defendant smelled of alcohol, had bloodshot
eyes, and admitted to drinking four or five beers. She failed
three field sobriety tests. In Indiana, proof of intoxication
can be established by a showing of impairment, independent of
tests for blood alcohol level.
The Court of Appeals also said that the defendant was under arrest
prior to the search. Even though the officer testified she was
not under arrest, he also stated that she was not free to go.
She was handcuffed in the back seat of the patrol car when the
search took place. Thus, her freedom and liberty of movement were
restrained. Even if the officer believed he did not have probable
cause to arrest her, his belief had no legal effect. Nor did his
failure to tell her that she was under arrest invalidate the search.
Stevens v. State, ___ N.E.2d ___ (Ind. Ct. App. 10/30/98) (Clark
County).
This is a publication of the Clark County Prosecuting Attorney, covering
various topics of interest to law enforcement officers. It is directed
solely toward issues of evidence, criminal law and procedure. Please
consult your city, town, or county attorney for legal advice relating to
civil liability. Please direct any suggestions you may have for future
issues to Steve Stewart at 285-6264.