The Fourth Amendment to the Constitution protects people in America from unreasonable searches and our State of Washington has even higher protections under our State’s privacy clause (Article I Section 7). In practice, this means that law enforcement cannot conduct a search of an individual’s home, belongings, property, or vehicle without having probable cause to do so.
Probable cause is defined differently depending on the situation. One condition that meets the probable cause standard is what is known as a search incident to an arrest. This basically means that if a police officer has enough evidence to make an arrest, he or she can search a suspect’s vehicle for further evidence relating to that criminal charge. But such an exception has been limited lately, expecially when an arrestee is secured in the squad car and the officer no longer faces any danger or risk of injury.
A Washington Appeals Court discussed the concept of search incident to an arrest in a ruling issued earlier this month. In Fenwick v. Washington, the court ruled that the search of a DUI suspect’s car (and the discovery of drugs inside it) may not have been constitutional but the attorney for Mr. Fenwick failed to raise the issue.
The case stems from a traffic stop in December of 2009 when a state trooper pulled over Thomas Fenwick because Fenwick was drifting in and out of his lane. While speaking with the driver, the trooper observed that Fenwick was rocking back and forth and making jerky hand movements. So the trooper ordered Fenwick out of the car and obtained consent to conduct sobriety tests. Based on those tests, the trooper arrested Fenwick for DUI, and a subsequent search of the vehicle turned up a quantity of methamphetamine.
Fenwick was later convicted at a trial during which the defendant did not challenge the legality of the search. But Fenwick subsequently filed an appeal, saying that the search of his car was unconstitutional and that his attorney was “ineffective” as his counsel. The appellate court rejected his appeal, noting that the search may not have been legal because under the recent cases of Gant and Afana but the record was not created in the court below.
This doesn’t mean that police can simply walk up to your door, arrest you on charges of drugs (or anything else) without good reason, and then search your home for evidence. But in the case of a driver failing roadside sobriety tests, the court feels that such evidence is enough for a DUI arrest. Under current caselaw the search of your car must happen before you are secured in the squad car unless a few exceptions apply. The lesson of Fenwick is mainly for defense attorneys to be more aggressive when making the record in the trial courts.