State of Kansas v. Stevenson: The Supreme Court of Kansas rules that the odor of alcohol, alone, does not establish the probable cause needed to search a vehicle

The Fourth Amendment protects us from unreasonable searches and seizures.  In Kansas, courts view any search conducted without a warrant as unreasonable per se under the Fourth Amendment, unless the State can fit the search into one of the recognized exceptions to the warrant requirement.  In other words, the State always bears the burden of proving the lawfulness of any warrantless search.  The lawfulness of a warrantless search depends on the totality of the circumstances, meaning that all factors must be considered, including those that tend to show that no crime took place.

One of the recognized exceptions to the warrant requirement is the automobile exception.  This is because the mobility of vehicles provides exigent circumstances (for example, a driver could quickly flee the scene, drive away and destroy evidence, etc.).  Under the automobile exception, if a vehicle is readily mobile and probable cause exists to believe the vehicle contains contraband or evidence of a crime, no warrant is needed for police to search the vehicle.

Here is a brief summary of the facts in this case.

Officers were watching a house, whose occupants were suspected of illegal drug activity.  When Mr. Stevenson left the home in his vehicle, the officers followed him.  Shortly thereafter, the officers pulled Mr. Stevenson over for failing to signal for 100 feet prior to his turn.

This basis for pulling him over is worth a quick aside.  The Supreme Court of Kansas has held that a driver is absolutely liable if he or she fails to continuously signal a turn for 100 feet prior to the turn. And the police need probable cause of a traffic infraction or crime to pull you over.  So if you fail to continuously signal a turn for 100 feet prior to the turn, you have given the police probable cause to pull you over, even if the traffic violation is solely a pretext for the real reason they want to stop you.  That means if the cops are looking for a reason to pull you over, just like they were looking for a reason to pull Mr. Stevenson over, all they need to do is wait until you fail to signal for the entire 100 feet prior to making a turn.  So if you don’t want to get pulled over, one thing to be mindful of is making sure to signal for at least 100 feet prior to a turn.

Back to the facts of the case.  Because the officers detected a strong smell of alcohol coming from the car, one officer asked Mr. Stevenson to step out of the vehicle and proceed to the rear of his car.  The other officer then noted that a very strong odor of alcohol was still coming from the car, even though Mr. Stevenson was no longer in it.  Mr. Stevenson passed a field sobriety test and was allowed to re-enter his vehicle.  A records check showed that his driver’s license was valid and he had no outstanding warrants.  Despite this, and despite no open containers being visible to either officer, the officers searched his car for an open container based solely on the strong smell of alcohol coming from the car.  They found two glass pipes with residue of methamphetamine, a digital scale, and a half-empty bottle of wine.  The officers then arrested Mr. Stevenson and upon searching him incident to the arrest, they found methamphetamine in his wallet.  The defense moved to suppress all of the acquired evidence as the fruit of an unlawful vehicle search.

As stated earlier, if a vehicle is readily mobile and probable cause exists to believe the vehicle contains contraband or evidence of a crime, no warrant is needed for police to search the vehicle.  In this case, Mr. Stevenson’ vehicle was readily mobile (as it was just driving down the road), so the only remaining issue was whether or not probable cause existed.

The district court upheld the search, finding that the strong smell of alcohol, on its own, gave the officers probable cause to search the vehicle.  Following a bench trial, Mr. Stevenson was found guilty by the district court.

On appeal, a split panel of the Court of Appeals upheld the ruling, opining that “the very strong odor of alcohol emanating from inside the vehicle, where the sole occupant of the vehicle had been excluded as the source of the odor, constituted probable cause to search the vehicle for open containers of alcohol.”

This ruling was appealed to the Supreme Court of Kansas, which granted review. The Court’s decision was issued March 28, 2014.

The statute at issue prohibited possession of an open container only on a highway or street.  So, for example, the driver may have legally consumed the alcohol in his parked car in his driveway, then spilled the alcohol in the car.  Also, Stevenson drove an SUV, which typically don’t have a trunk that is separate from the passenger compartment—it is usually just an area located behind the back row of seats.  Kansas law considered this and explicitly excluded such an area from the open container law (“No person shall transport in any vehicle upon a highway or street any alcoholic beverage unless such beverage is . . . if a motor vehicle is not equipped with a trunk, behind the last upright seat”).  The Court took note that a spilled bottle of wine in the back area of an SUV does not violate Kansas law.  Accordingly, operating a vehicle in which alcohol has previously spilled does not, without more, establish a violation of the statute prohibiting transporting an open container.

The Court found one of the officers’ logic to be flawed when he argued that the smell of alcohol established probable cause, because the smell of marijuana coming from a car establishes probable cause to search the car.  In Kansas, the smell of marijuana in a car does rise to the level of probable cause, so an officer can search a car if he smells marijuana.  Such a rule obviously allows for an officer to simply say that he or she smells marijuana, but that is a different issue for a different day.  The Court stated that the distinction between an officer smelling marijuana and smelling alcohol is that the odor of marijuana is always evidence of illegal activity, but the odor of alcohol, even in a car, is not.

The Supreme Court of Kansas reversed the Court of Appeals decision, holding that the odor of alcohol in a vehicle does not, by itself, establish probable cause to search a vehicle.

It is important to remember that such rulings are limited solely to the circumstances of the case (a link to the full opinion is located below).

Of course, the smell of alcohol on a driver’s breath would justify an officer’s conducting a field sobriety test, which, if failed, would then give probable cause to arrest the driver for driving under the influence.  The officer would then be allowed to search the driver’s person, as well as the car, incident to that arrest.

Also remember that it is never okay to ignore or contest police officers’ authority because of what you perceive to be a procedural or legal flaw in their actions.  Your recourse for such missteps in police action is in court, not at the scene of a stop.  You never have the right to refuse to obey, much less physically resist, a police officer who is searching your vehicle.

However, that does not mean that you have to consent to anything.  If an officer has the right to do something, he or she will generally not ask your permission.  If the officer asks if they can search something, you always have the right to say no.  If you say no and he or she continues to do whatever they asked permission for, do not stop them.  Just be sure to tell your attorney that the question was asked and you did not consent.

Even if you think the officer is doing something beyond the scope of his authority, be respectful and cooperative.  Informing an officer of his or her legally unsupported tactics may allow him or her to correct the otherwise deficient investigation, so it is obviously not in your interest to inform the officer of how your rights are being violated.  Once you have been released, call The Flynn law Firm for a free consultation to discuss any citations or charges you face, as well as any perceived violations of your rights.

Link to the full opinion.

This entry was posted in Criminal Law & Procedure, Drug Possession, DUI & DWI, Kansas, Minor in Possession, Open Container of Alcohol, Probable Cause, Search and Seizure. Bookmark the permalink.