State v. Mose B. Coffee, 2018AP1209, petition for review granted 10/18/19; case activity (including briefs)

Coffee got arrested for driving while intoxicated based on field sobriety tests, the odor of alcohol, slurred speech and bloodshot eyes. After his arrest the cops searched his car, including a “tote-like” bag behind the driver’s seat. Near the bottom of the bags the officers found some weed and some baggies.

Coffee relied in particular on a previous unpublished but citable court of appeals case, State v. Hinderman, to argue that there was no reason to think evidence of drunk driving would be found at the bottom of the totebag. The search in Hinderman, which the court suppressed, had been of a 3″x 3″ pouch, whereas the bag in this case was bigger such that it could contain an alcohol bottle or can. But that factual difference didn’t weigh very heavily in the court of appeals’ decision going the other way here. Instead, it accused the Hinderman court of applying the “wrong standard” for automobile searches incident under Arizona v. Gant, 556 U.S. 332, 335 (2009).

This “wrong standard” claim is perhaps a little overheated, depending on a linguistic quibble: suppose you have reason to believe a thing “might” be true. Is that meaningfully different  than having reason to believe the same thing “would” be true? “Would” is not always “might,” to be sure, but plugging either term into the “reason to believe” formulation suggests we’re talking about something like reasonable suspicion: reason to think something could be so, rather than certainty or near-certainty.

Also questionable: the Coffee court’s argument that probable cause for drunk driving necessarily gives reason to believe other drugs (particularly drugs that can fit in small spaces) are in the car. But, now we have SCOW to sort the whole thing out, so stay tuned.