I have an interesting fact situation:
Officer stops a car and smells alcohol coming from inside car. He gets driver out and has him stand by patrol car and asks if there are any "Open containers" in car. Driver says no. Officer then goes and talks to passenger. He asks passenger about open containers. Passenger also says there is no open alcohol. Officer then orders passenger out of car and begins to search the car for "open containers". During his search he happens to find some meth in the driver seat.
Now, given the automobile exception and cops can search a car for contraband if they have PC...the question is: does smell of alcohol coupled with denial of open containers rise to pc to search for said alcohol?
I am not so sure that it does...what does every one else think?
Was the odor of alcohol eminating from the car or the people inside the car?
I had very close to the same set of facts on a recent case. The judge suppressed the evidence opining that the officer did not have PC.
Did the officer consider asking for consent?
In my case consent was refused, which just ensured that the officer was going to search, but he went a little too far.
Officer stops vehicle that is driving recklessly toward him on county road. As car is stopping officer sees passenger "acting as if he was hiding or retrieving unknown object from underneath the seat". Orders passenger out at gunpoint and conducts a pat down with no results. Same for driver. Next, he asks driver numerous times if there was "contraband" in the vehicle with no response. Officer decides to search vehicle and finds MJ in pants pocket of jeans with drivers name on the belt. Good search?
My 2 cents:
I have always been told that alcohol is odorless. Hopefully the officer said he smelled the odor of an alcoholic beverage.
I don't believe the denial of having an open container is relevant unless the officer can say the defendant's demeanor led him to believe he was lying.
Having said that, isn't this like detecting the odor of marijuana, which gives PC to search the car? In both cases there are innocent explanations for the smell, but the officer doesn't have to be right, he just has to have PC.
Assuming the officer had PC to search for an open container of drink, was the scope of the search limited to places where an open container could be located? If he saw meth in plain view on the seat, that is one thing, but feeling between the cushions where no open container could be located is something else.
I get this question occasionally from Troopers. To me, the big difference is that MJ is illegal--period. On the other hand, it's not against the law for a person to drink alcoholic beverages and operate motor vehicle unless the person is intoxicated. Therefore, the fact that the officer smells the odor of an alcoholic beverage emanating from the window of the vehicle may simply be due to the exhalations of the driver in a small closed space. I think a court would require additional evidence of an open container before the court would approve of a warrantless, non-consensual search. But that's just my educated guess since as far a I know, no Texas appellate court has specifically addressed the issue.
The "smell" of an alcoholic beverage does not emanate exclusively from open containers. Yet, it is only an open container that is contraband (in a vehicle). Furthermore, your stated facts do not include finding an open container of alcohol. Thus, this is a case where the results of the search may defeat the credibility of the claimed PC. I think Dennis' judge was probably right. Furthermore, I am skeptical that the possibility of finding evidence of a Class C misdemeanor justifies the rather extensive search you seem to be describing. The supposed lack of credibility of the answer to the question adds nothing to the probable cause analysis in my opinion. This reminds of the DPS trooper who said he could identify the nervousness associated with drug possession versus the nervousness that might otherwise accompany an encounter with the police. I think one thing we tend to forget is that while the automobile may be an easy exception to the warrant requirement, it still enjoys some privacy. I think the officer must articulate something more than smell.
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