We currently have a case involving a search of a vehicle for "additional alcohol contraband" after viewing an open container from outside of the vehicle. Does anyone have any case law on this issue as I have been unable to find any on point?

Thanks

I have not found any appellate cases on the subject and I have looked. However, in teaching DWI law to breath test operator classes and arrest, search & seizure law to the recruit classes, I tell them that it is my opinion--and only an opinion given the lack of court rulings--that the clause in 49.031 that makes possession of more than one open container in a single criminal episode a single offense essentially precludes searching the vehicle for additional "open containers" of alcohol. Since under the automobile search exception the officer is given the authority to search for the particular contraband the officer suspects is in the vehicle--in this case open containers--there is no reason for the officer to search for more open containers--1 or 100, it's only one citation.

Anyway, I'm waiting for some defendant to take the issue up on appeal past the county court level.

Janette Ansolabehere
DPS

Come on, since when do we interpret laws that way? Possession of a single baggy of cocaine is a crime, too, but that has never stopped an officer from conducting a reasonable search of the entire vehicle, top to bottom, for places that could hide additional drugs. That's the nature of probable cause to believe you will find evidence of a crime.

That's the same sort of narrow interpretion that gets DPS troopers to believing incorrectly they have to read Miranda warnings any time they talk to a suspect. Might be an easy rule to pronounce, but it isn't the law and doesn't reflect the history and meaning of the search and seizure.

How does the number of open containers control the grounds for a search? Wouldn't how you define contraband be the issue? A baggy of cocaine/pot is inherently contraband, but alcohol is not. Coke and pot get you everywhere, no matter your age. If you are MIP, whether open or not, ETOH is contraband and you can search. Likewise, if you are under 18 yoa and have tobacco, it is contraband and you can search. BUT if you are 21 yoa or older and have an open container - it is not "contraband" is it? 49.031 specifies the crime is the possession in the "passenger area" which is well-defined and excludes glove compartments, trunks, locked containers, etc. So I don't see how you think you can get to search everywhere based upon this.

Five guys in a car. Three of them have 'roadies'. Officer pulls them over. Spots the half finished bottle in the floor board between the passenger's legs. Shouldn't the officer be allowed to check the rest of the compartment for relevant evidence? The officer should be able to look and eventually discover the bottle hastily shoved behind the armrest in the back seat and the other one in the seat pocket of the driver's seat.

If there is a pass-through behind the armrest into the trunk, the officer should check that as well.

That raises a good point. How many defendants or potential defendants were in the car? It would seem that, although section 49.031(b) aggregates all open containers into a single offense, it does so for one defendant. If you had several passengers who were enjoying the fruits of the beer run, the officers could be searching for multiple open containers not to shore up the aggregate number, but to discover evidence that more than one passenger (potential defendant) had an open container.

Isn't the fact that open containers are prohibited in vehicles driven on highways sufficient to make them "contraband" for these purposes? After all, the officer would be remiss in his duties if he didn't check for the presence of other open containers, once he's spotted one and has P.C. to suspect that others may be present.

Unless the vehicle is legally parked on private property, that is, or the driver's already in custody and the car won't be driven away by anyone else. But if the car's stopped on the street and is likely to be driven away, I would think the officer has adequate grounds to search for more open containers. It's not to create another charge or compund amounts, it's simply to ensure no ther violations are occurring in his presence.

I equate this with an officer who sees a child not restrained by a seat belt inside a moving car; upon stopping the car he sees other kids in there but can't see through the tinted windows whether the other kids are properly restrained or not. Of course he should check at that time to see if they are properly belted in, too. He has P.C. to believe that they may not be. That's not a search for "contraband" but the officer's role is similar.

I agree. I think a search is reasonable and lawful as the last 2 scenarios have pointed out. I typically think of beer cans as opposed to flasks, so maybe I'm limited by my choice of drink. However, would you agree that the search is limited to the passenger area? When an open container is contraband, it is only because it is in the passenger area, so you could not search anywhere it is likely to be found, right(outside of the passenger area)?

Okay, does it make any difference that open container is a ticketable only offense? Arguments are sometimes made that being stopped for speeding alone does not grant search-a-bility (should be a word if it isn't) without consent since it is ticketable only. I know that this is often used in the context of search incident to arrest, but can it be argued in another context?

Ticketable offenses that you may not arrest for number only two. Speeding and open container. Flying down the highway with a cold one in your hand seems to be conduct the legislature wants protected. That simply means no search incident to arrest. The automobile exception still allows a search for any evidence, even evidence of a fine only offense, without a warrant if it is based on probable cause.

Don't have a codebook handy, but seem to recall some cute language in the statute which seemed designed to protect the ability to stash your booze behind the back seat. Seemed pretty clear that an officer would NOT be able to cite (or search) for O.C. anywhere further back than the last passenger seat in any vehicle.

We have a case where the trooper makes a stop for speeding. When the trooper approaches the driver seated in the car, the trooper smells the distinct odor of an alcoholic beverage comming from the inside of the vehicle. The trooper then asks the driver to step out, and then proceeds to search the vehicle on the grounds that the smell of alcohol gave him PC for an OC violation. Trooper finds a rock of crack wrapped up in a small ball of paper trash in the back seat.

Dope admissible?

Was the ball of trash paper a place likely to conceal an open container? Did the officer have some other articulable pc to look for something in addition to open containers? If "no" to both of those, I don't see how it's admissible, unless the officer had a reason to arrest on other grounds, since you can't arrest for oc.

Depending on the specifics of your case, I offer a recent encounter that I felt justified a vehicle search for additional "open container" contraband. The articulable facts were:
1. A car was operated on a roadway with an expired MVR sticker.
2. The car was occupied by two persons.
3. On the rear floor board was a six-pack of beer with two missing beers.
4. The passenger had an opened beer in plain view between his legs.
5. The driver was not seen with a beer, however the presence of an alcoholic beverage was detected on his breath.
6. Both the driver and passenger admitted to just getting off of work, and they were head for the same destination.

With these articulable facts, I felt that probable cause existed for a search of the passenger area of the car, specifically for one other open beer can. As such, the other beer was found hidden under the front passenger seat. The scope of the search was performed with the "the beer can" in mind, and without other facts known, the scope was limited to the area that the beer can could likely have been.

I do not see how one "open container" gives peace officers blanket authority to simply search the passenger area of a vehicle. It should be supported by factors that justify the search.

I'm reviving this one because I need to ask a question about open containers.

Specifically, trooper stops vehicle for window tint violation. (That part was good.)

During initial contact, he asks to see what is in a paper bag and is shown a "six pack" holder with only one cold unopened beer.

Checks driver for intoxication, but driver is not.

Informs driver he is going to look for more unopened containers (calls the one can six pack an opened container.)

Judge suppresses because officer had no reason to continue detention after he found the driver was not intoxicated. Any thoughts?

J.A.L. was a fairly recent case on this:

"If 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."
* * *
More pertinent to the facts of this case, the Court of Criminal Appeals held in Osban:

When an officer discovers even a small amount of contraband in the passenger compartment of an automobile, the key question to be asked, in terms of determining probable cause for a further search, is whether a man of reasonable caution would be warranted in the belief that other contraband items may be located in [another part] of the car.

Osban, 726 S.W.2d at 109; accord Cunningham, 11 S.W.3d at 440.

Here, it is undisputed that Officer Bagnell had probable cause to search J.A.L.'s car for beer. The discovery of a 12-pack in the backseat containing only three bottles and the observation of other bottles in the floorboard gave Bagnell probable cause to search "every part of the vehicle" for additional bottles.

In re J.A.L., 2006 WL 727701 at *2-3 (Tex.App. - Waco March 22, 2006, no pet.) (memo. op.)

JAL was my case and some of the cases I found were
---Cunningham v. State, 11 S.W.3d 436, 440 (Tex.App. -- Houston [14th Dist.] 2000, no pet.) (discovery of marijuana residue in car provided probable cause to believe there was more marijuana in car); see also United States v. Burnett, 791 F.2d 64, 67 (6th Cir. 1986) ("Once the contraband was found, officer Brady had every right to search the passenger area of the car, the trunk, and any and all containers which might conceal contraband.").

-- State v. Peterson, 407 N.W.2d 221, 223-224 (S.D. 1987) (nothing improper about continuing to search car for open containers of alcohol after finding one); State v. Schuette, 423 N.W.2d 104, 106 (Minn. Ct. App.1988) (rejecting argument that continued search for alcohol in car after some alcohol had been found -- in violation of open container statute – was “idle curiosity;” held: probable cause is not defeated by finding some evidence of violation); State v. Collard, 414 N.W.2d 733, 736 (Minn. Ct. App.1987) (officer may continue to search vehicle after observing open bottles in plain view), review denied (Minn. January 15, 1988);

Thanks David, this is just what I needed.