State v. Peterson , 1987 S.D. LEXIS 285 ( 1987 )

MORGAN, Justice.

This is an appeal from a judgment of conviction for possession of marijuana and possession of drug paraphernalia. We affirm.

On September 1, 1985, a state trooper observed appellant Delbert R. Peterson’s automobile fishtailing and throwing up dust. The trooper stopped the car and spoke to Peterson while Peterson remained in his car. During the conversation, the trooper noticed a strong odor of alcohol coming from inside the vehicle. The trooper took Peterson back to his patrol car and again noticed a strong odor of alcohol emanating from Peterson. The trooper called for assistance and an officer of the Hot Springs police department responded. According to the trooper, the officer radioed instructions to hold the individual because the officer wanted to check him out “for a possible 10-80.” (10-80 is a code number referring to narcotics information or involvement.) The officer testified that he did not know whose, vehicle had been stopped when he first heard the trooper’s radio communication; according to his standard procedure, he would have backed up the trooper on any traffic stop.

When the officer arrived on the scene, the trooper asked him to conduct a plain-view search of Peterson’s vehicle, looking for open containers. In conducting the search, the officer first advised the two passengers who were in the car to get out so that he could look in the driver’s reach for open containers. The officer then found an open beer can, which was empty, on the floor board. He placed the beer can on the roof of the car and looked into the car again. This time he entered the confines of the vehicle and found a roach clip in a console between the two front seats; the roach clip was in plain sight once the officer entered the vehicle. As a result of this discovery, the trooper arrested Peterson for possession of drug paraphernalia. The trooper did a pat down search of Peterson and found a hollow stone, which is considered to be drug paraphernalia. The two officers also conducted a more thorough post-arrest search of Peterson’s car and found more drug paraphernalia and some marijuana in the glove compartment.

Prior to trial, Peterson moved to suppress all evidence obtained during the police searches. The trial court denied the motion, ruling that the odor of alcohol on a driver’s breath is sufficient to warrant an investigation to determine whether the driver is under the influence of alcohol, as well as to investigate possible open container violations. The trial court also concluded that once the officer observed the open beer can, there was probable cause for an arrest and a contemporaneous search of the automobile incident to the arrest. Following a court trial, Peterson was convicted on the marijuana possession and drug paraphernalia charges.

The issue on appeal is whether the police officers were justified in conducting the warrantless searches of Peterson’s vehicle. Peterson argues that the odor of alcohol on one’s breath and about one’s person does not constitute the probable cause necessary to justify the warrantless search of an automobile. We disagree.

The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that searches conducted without the prior approval of a judge or magistrate are per se unreasonable, subject to only a few specific exceptions. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). One such exception is the “automobile exception.” California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). It is well settled that an officer having probable cause to believe that an automobile which he has stopped contains contraband or evidence of a crime may search the vehicle without a warrant under the automobile exception. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Johnson, 320 N.W.2d 142 (S.D.1982); State v. Burkman, 281 N.W.2d 436 (S.D.1979).

Courts in other jurisdictions have also ruled that the detection of odors alone, which trained police officers can identify as being illicit, constitutes probable cause to conduct a warrantless search of an automobile for further evidence of crime. See United States v. Haley, 669 F.2d 201 (4th Cir.1982); cert. denied 457 U.S. 1117, 102 S.Ct. 2928, 73 L.Ed.2d 1329 (1982) (odor of marijuana); City of St. Paul v. Moody, 309 Minn. 104, 244 N.W.2d 43 (1976) (odor of paint fumes); State v. Pierce, 347 N.W.2d 829 (Minn.App.1984) (odor of alcohol). The Minnesota Supreme Court has ruled that an officer’s detection of the odor of alcohol coming from an automobile gave him probable cause to believe that a search of the vehicle would reveal open bottles or cans of alcohol; therefore, the officer was justified in making a warrantless search of the passenger compartment of the vehicle. State v. Schinzing, 342 N.W.2d 105 (Minn.1983). We find these authorities to be persuasive. The trooper’s detection of the odor of alcohol coming from Peterson and the automobile gave him probable cause to believe an offense had been committed, thereby allowing him to search the passenger compartment for evidence of an open container violation. A search warrant was unnecessary under the automobile exception. Chambers, supra; Carroll, supra.

Peterson also contends that once the officer found the open beer can, his search should have come to a halt since an open liquor container was the object of the search. However, “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” United States v. Ross, 456 U.S. at 825, 102 S.Ct. at 2173, 72 L.Ed.2d at 594 (emphasis added); Estep v. Commonwealth, 663 S.W.2d 213 (Ky.1983). In Ross, the United States Supreme Court approved the continued war-rantless search of the interior and trunk of an automobile after an illegal drug had already been found in the vehicle. The Court concluded that “[t]he scope of a war-rantless search based on probable cause is no narrower — and no broader — than the scope of a search authorized by a warrant supported by probable cause.” United States v. Ross, 456 U.S. at 823, 102 S.Ct. at 2172, 72 L.Ed.2d at 593. Likewise, in the present case it was reasonable for the officer to continue his search for open containers, especially since the beer can that he found at first glance was empty. There may well have been other open containers within the driver’s reach. Here, the roach clip was in plain sight in a console between the two front seats, easily within Peterson’s reach. Therefore, the officer’s search was clearly valid under Ross.

During the final phase of the officers’ search, after Peterson had been arrested, the officers found more drug paraphernalia and some marijuana in the glove compartment of Peterson’s car. This search was valid as a search incident to arrest. When a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile; the police may also examine the contents of any containers, including the glove compartment, found within the passenger compartment. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Rice, 327 N.W.2d 128 (S.D.1982). A search incident to arrest is distinguishable from police inventory searches, such as that conducted in State v. Opperman, 247 N.W.2d 673 (S.D.1976).

Finally, we are troubled by the “10-80” radio transmission from the officer to the trooper and the concerns that it raises. However, the record indicates that the trooper detected the odor of alcohol coming from Peterson’s vehicle prior to his call for assistance. Therefore, the trooper had probable cause to search Peterson’s car before he received the officer’s 10-80 message. The record also indicates that it was standard procedure for the officer to back up the trooper on all traffic stops, just as he did in this case. Under such circumstances, the officer’s search of Peterson’s vehicle was valid and cannot be considered merely a pretext for a drug investigation. The trial court properly denied Peterson’s motion to suppress the evidence.

The judgment of the trial court is affirmed.

WUEST, C.J., and MILLER, J., concur. HENDERSON and SABERS, JJ., dissent.