Smell of alcohol from car or from driver?

Shawn Lautz won in State v. Carson, No. 101,242 (June 5, 2009)(unpublished), affirming Judge Chamber's suppression order in a Reno County drug prosecution. The COA held there was substantial competent evidence to support the district court's finding that Carson's consent to search was not voluntary, even if obtained during lawful detention. The COA went on to consider whether the officer had probable cause to search. Specifically, the COA considered whether the smell of alcohol during a traffic stop necessarily provided probable cause to search for an open container:

The facts of Bickerstaff are distinguishable from the facts herein. In Bickerstaff, there was positive evidence that the officer smelled alcohol emanating from the vehicle. Here, no such testimony was provided. Rowe testified that when Carson exited the vehicle, he could smell the odor of alcohol but could not distinguish whether the odor was coming from inside the vehicle or from Carson's person. Rowe smelled the faint odor of alcohol when he returned to search the vehicle, but this fact cannot be considered for purposes of determining whether probable cause existed because Rowe did not identify this odor until he began to search the vehicle.

Furthermore, the defendant in Bickerstaff denied she had been drinking, which upported the officer's valid belief that the odor of alcohol must have been coming from inside the vehicle and not from the defendant's person. Here, Carson admitted he had a couple of drinks. Thus, Rowe had less reason to suspect that alcohol was coming from an open container inside the vehicle as opposed to Carson himself. Finally, the defendant in Bickerstaff took a breath test which established that she had alcohol in her system. This fact was not present in Carson's case.

In finding that Rowe did not have probable cause to search Carson's vehicle, the district court emphasized Rowe's testimony that he did not suspect any illegal activity after Carson passed the field sobriety tests. Probable cause is a higher standard than reasonable suspicion. If Rowe did not reasonably suspect any illegal activity after Carson passed the field sobriety tests, there was no probable cause to
search the vehicle for open containers. We believe the holding in Bickerstaff should be limited to the facts of that case. Here, where Rowe did not see any open alcohol containers inside Carson's vehicle and Rowe could not even tell whether the odor of alcohol was coming from inside the car, we conclude the district court did not err in finding that Rowe lacked probable cause to search Carson's vehicle for open containers of alcohol.

Because the officer had neither valid consent nor probable cause to search, the COA affirmed the suppression order.

[Update: the state did not file a PR and the mandate issued on July 9, 2009.]