Chapter 14: Defending Against A DUI - Suppressing Warrantless Searches

Suppressing a warrantless search

A police officer cannot search your vehicle just because you were pulled over and suspected of DUI. Generally speaking, an officer must have a warrant to search your vehicle because you have an expectation of privacy in your private property.

As such, Tennessee courts begin with the presumption that a warrantless search of your vehicle was illegal. Consistent with that notion, just like the burden of proving you guilty beyond a reasonable doubt is on the State, the burden of proving that a warrantless search of your vehicle fits into one of the numerous exceptions of the warrant requirement is on the State as well.

Although there are many exceptions to the requirement for a police officer to have a warrant before searching your vehicle, there are four primary exceptions that apply to DUI cases. Your lawyer should strictly scrutinize any warrantless search that resulted in evidence of DUI, or any other crime such as simple possession, being used against you.

Common exceptions in DUI cases:

(1) Inventory Search

The first and probably most widely used exception to the warrant requirement in a DUI case is the inventory search exception. This exception applies to allow a police officer to search your vehicle without a warrant whenever the officer has probable cause to arrest you for suspicion of DUI.

In short, whenever a police officer arrests you for suspicion of DUI, the officer will not leave your vehicle on the side of the road. Instead, the officer will call a tow truck company to tow your vehicle for you. Before the tow truck company tows your vehicle, an officer will search your vehicle to “inventory” the vehicle, or make a list of all of your personal belongings within the vehicle, in an endeavor to protect your personal belongings.

In the eyes of the courts, an inventory search is justified because it is for your, the defendant’s, protection to insure that your belongings are not stolen, as well as to protect the police department from claims that they are responsible for your personal belongings being stolen.

Defense

Although an officer may inventory search your vehicle before towing it, the burden is on the State to prove that there was not a reasonable alternative to the officer seizing and towing your vehicle. It is important that your lawyer evaluates every aspect and every justification provided for an inventory search. 

For example, a police officer is required to ask you, the individual being arrested for suspicion of DUI, whether you can call someone to pick up your vehicle in a reasonable period of time. If you can have a loved one or a friend, or call a towing company yourself, you should be provided that opportunity, even if you do not have a passenger present that can safely operate your vehicle for you.

Additionally, other defenses may exist that your lawyer should discuss with you to determine if they can suppress any illegal evidence found during an inventory search.

(2) Search Incident to Arrest

Another widely used exception is the search incident to arrest exception. This exception may only be used to find evidence against you in limited circumstances including: (1) you, the arrestee, being within reaching distance of the passenger compartment at the time of the search; or (2) it is reasonable for the officer to believe that your vehicle contains evidence of the offense of your arrest.

The first circumstance is justified by courts based on the belief that you can reach in the compartment to obtain a firearm, making you a threat to the officer, or you can hide the evidence of the offense.

The second circumstance is justified by courts only in limited ways. This is extremely fact specific which your lawyer must strictly evaluate as well. For example, if your vehicle, rather than your body and breath, smells like alcohol or marijuana, the officer may search your vehicle under this exception because it is reasonable for the officer to believe that there is an open container or marijuana within your vehicle.

Defense

Once again, the burden is on the State to prove that this exception is applicable to justify the officer’s warrantless search of your vehicle. The officer’s suspicion that there is evidence of the crime within your vehicle must be based on specific reasonable inferences, rather than simply a hunch.

Just for being arrested for DUI, an officer cannot claim that he or she was searching your vehicle to find evidence of the crime of DUI. The officer must have specific suspicion based on the circumstances of your individual case. An officer cannot simply speculate that there is illegal evidence in the vehicle.

Moreover, the officer cannot search your entire vehicle based on this exception. Instead, the officer may only search areas that the officer can reasonably believe may contain evidence of the crime. For example, if an officer smells beer and is looking for an open container in the vehicle, the officer cannot open your trunk to find the open container, unless he or she has specific information that makes the officer believe that there is evidence within the trunk.

(3) Automobile Exception

This exception is very similar to the search incident to arrest exception, only that it is slightly more broad in that the officer may search your entire vehicle, including your trunk.

For this exception to be applicable, it is even more strict than the search incident to arrest exception because the officer must have probable cause, rather than just reasonable suspicion, that evidence of the crime may be found inside of your vehicle.

Defense

Similar defenses apply to prohibit the use of this exception as the search incident to arrest exception. Of course, because probable cause requires more proof than reasonable suspicion, if the officer did not have reasonable suspicion to justify the use of the search incident to arrest exception, the officer definitely did not have probable cause to use the exception to the warrant requirement.

(4) Plain View Exception

Lastly, an officer may search your vehicle if evidence of a crime is in plain view. This means that if the officer observes beer, or any other illegal contraband, the officer may then search your vehicle.

Additionally, even if you are pulled over for a traffic violation, a police officer may ask you to step out of your vehicle. When you step outside of your vehicle, if illegal contraband falls out of your vehicle or is in plain view when you open your door, the officer may also rely on this exception.

Defense

Although this exception is usually upheld more broadly by courts than the other exceptions, there are still defenses from the plain view exception. For example, if the officer did not have reasonable suspicion to pull you over in the first place then the officer would have never saw the illegal contraband in plain view. Thus, the evidence would be subject to suppression.

Overall, whenever an officer searches your vehicle and finds evidence of the crime of DUI, or any other crime, it is important to question the officer on which exception he or she relied on to conduct a warrantless search. It is also important to question the officer to determine if a defense is applicable to suppress the evidence.

If any defenses to an illegal search is applicable in your case, it is important that your lawyer discusses the defenses with you. Your lawyer should question the officer vigorously on the search either at a preliminary hearing or at a motion to suppress hearing to argue that the facts of your case made the exception inapplicable. And remember, the burden of proving that the search was valid is on the State, not you and your lawyer to prove that it was invalid.