agreeing in part and dissenting in part.
I agree with the majority that appellant’s convictions resulting from the June 5 and July 9, 2008 traffic stops should be affirmed. However, I disagree that the conviction resulting from appellant’s DWI arrest outside the Electric Cowboy on July 20, 2008, should likewise be affirmed.
|mOn July 20, 2008, Officer Scott O’Dell of the Fayetteville Police Department came in contact with appellant at approximately 2:85 a.m. in the parking lot of the Electric Cowboy. At the time of the contact, the club had been closed for over thirty minutes. Officer O’Dell became concerned when he observed appellant’s car in the parking lot with the motor running. Officer O’Dell routinely went through the parking lots of the night clubs to “make sure there are not any fights or intoxicated people.” Officer O’Dell approached appellant’s vehicle and could immediately “smell an odor of intoxicants, alcohol, coming from out of the vehicle before [he] ever said anything to [appellant].” Appellant told Officer O’Dell that he was sitting in the parking lot waiting for a worker named Jodi to get off work. Officer O’Dell found this explanation odd because there were a lot of items in appellant’s passenger seat. Officer O’Dell asked some employees of the club, who were outside, if Jodi worked there. Officer O’Dell learned that no one by the name of Jodi worked at the club and relayed the information to appellant. Appellant told Officer O’Dell that “he had been in the bar earlier and asked for Jodi and they told him that she didn’t work there.” According to Officer O’Dell, appellant’s story did not make sense. At this time appellant was not free to leave so Officer O’Dell got appellant’s driver’s license and requested the DWI unit.
Detective Jason French responded. He conducted three field-sobriety tests on appellant: the horizontal-gaze-nystagmus test (HGN), the walk-and-turn test, and the one-legged-stand test. Appellant performed the walk and turn and the one-legged stand “fairly well”; however, the officer observed four of the six clues of intoxication during the HGN. |uAppeIlant was arrested for suspicion of DWI. Appellant’s vehicle was searched subsequent to his arrest. A marijuana cigarette was found on the driver’s side of the car and a small amount of crystal meth was found in a business-card wallet on the passenger side of the vehicle. Appellant’s breathalyzer result was .06, so he was never charged with DWI. Appellant unsuccessfully moved to have the drug evidence suppressed. He stood jury trial on November 12, 2008, and was convicted. This appeal followed.
Appellant contends that the search of his vehicle subsequent to his arrest on July 20, 2008, was unconstitutional in light of Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In Gant, the court clarified its prior authority regarding searches incident to the lawful arrest of a recent occupant of a vehicle, indicating that the passenger compartment of such a vehicle may not be searched for weapons if a suspect is handcuffed and in the back seat of the patrol vehicle, as a suspect who has been so secured may no longer access the interior of the vehicle. Id. at 1714. The court in Gant additionally held, however, that “[although it does not follow from Chimel [v. California 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ], we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’” Id. at 1719 (citations omitted).
According to appellant, at the time of the search, he was already under arrest and secured in the back of the police car. Appellant argues that the State failed to prove that evidence of his arrest (suspicion of DWI) might be found in his vehicle. Police may search | iaa vehicle incident to a recent occupant’s arrest only if the arres-tee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of the arrest. Gant, supra. When these justifications are absent, a search of an arres-tee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. Id.
In the present case, appellant was arrested for suspicion of DWI after Officer O’Dell smelled alcohol coming from inside appellant’s running car. Detective French was called to the scene and had appellant undergo three field-sobriety tests. Appellant performed well on two of the tests but failed the HGN. Therefore, appellant was arrested for suspicion of DWI. Appellant’s vehicle was searched incident to that arrest. The State contends that under the “Omnibus DWI Act, ‘intoxicated’ means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination of alcohol, [and] a controlled substance.” . However, this argument is not convincing.
According to the evidence adduced at the suppression hearing, appellant was suspected of DWI due to the smell of alcohol coming from inside his car and his unbelievable story about being in the parking lot. Although controlled substance is included in the meaning of intoxicated, there is no indication that, at the time of his arrest, the officers suspected appellant of being under the influence of a controlled substance. There was no evidence at the suppression hearing or at trial to support the majority’s contention that the officers were looking for evidence of appellant’s intoxication. When the officers were questioned 1 ^.concerning their decision to search appellant’s vehicle, they replied that they searched the vehicle because it was incident to a lawful arrest. This is the type of search Gant seeks to prohibit. Gant limits an officer’s search of a vehicle following an arrest. The majority’s opinion fails to recognize that there are limitations and restrictions, which must be followed and adhered to. Officers must be put on notice about what is allowed following Gant, and the majority fails to define these limitations. Instead, the majority sends the message that nothing has changed and officers can continue to search a vehicle incident to a lawful arrest without anything more to prompt such a search. Therefore, I respectfully dissent from the majority’s decision to affirm appellant’s conviction resulting from the July 20, 2008 search of his vehicle.