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incident with Johnson County Sheriff
Posted: Tue Feb 14, 2012 4:15 pm
by CheckonChico
Almost two years ago on Labor I was pulled over for speeding(54 on 45). It was around 6:30pm(still daylight) and I was driving home from my buddy's house after a day of hanging out by the pool and cooking out. I had three beers and a whole bunch of fajitas and was definitely not drunk. That day for some reason my wife and I were in two different vehicles, i went in my work truck(single cab ranger) and she was in her jeep, my brother was in the passenger side when the LEO pulled me over. After I was pulled over I handed over my DL and insurance(didn't have my chl at that time nor was I carrying). He runs it and comes back a few mins later and asks if I've had anything to drink to which I reply, "yes, throughout the day I've had three beers and my last was about 1 1/2 hours ago." He asks if that's all I've had because he can smell a strong odor of alcohol on my breath, to which I reply "yes." He asks if I have any open containers in the truck as well to which I reply, no. He then asks me to step out and do some field sobriety tests. I follow all his orders pass the test with no problem and he determines I am not intoxicated. What happens next is what got me. He then states to me, "because I smelled alcohol in your vehicle, I have the right to search it without consent, so wait here." This shocked me because I was prepared to not give consent but he obviously didn't give me a choice. Was this legal for the LEO to do this??
Re: incident with Johnson County Sheriff
Posted: Tue Feb 14, 2012 4:23 pm
by Rex B
Can't answer that, but I'm interested to hear an informed answer.
Obviously that's been gnawing at you, as it would me.
Re: incident with Johnson County Sheriff
Posted: Tue Feb 14, 2012 4:27 pm
by CheckonChico
Yes it has! Especially after what happened afterwards. I will discuss it after I get some input on the first part.
Re: incident with Johnson County Sheriff
Posted: Tue Feb 14, 2012 4:38 pm
by Keith B
I am not a Texas LEO or Lawyer, but in Missouri the smell of alcohol on your breath was probable cause for search, just as the smell of marijuana would be. I would assume it is the same here. And while you were not intoxicated, the smell of alcohol could indicate you had an open container in the vehicle, which is illegal in Texas. It could also indicate you were drinking while driving which would allow you to go on and become intoxicated as you drove.
Hopefully a Texas LEO will come along and validate my thoughts here in a bit.
Re: incident with Johnson County Sheriff
Posted: Tue Feb 14, 2012 7:56 pm
by smoothoperator
Will he let you call your lawyer? If not then he probably thinks the search is illegal, whether or not it is.
Re: incident with Johnson County Sheriff
Posted: Tue Feb 14, 2012 9:46 pm
by ddurkof
Probable cause to search for an open container of alcohol. You could tell him no, but the roadside is not where you litigate.
Re: incident with Johnson County Sheriff
Posted: Wed Feb 15, 2012 10:17 am
by steveincowtown
ddurkof wrote:Probable cause to search for an open container of alcohol. You could tell him no, but the roadside is not where you litigate.
IMHO, you are ALWAYS better of to say no. This can be done in a respectful way that makes it clear that you do not consent.
Re: incident with Johnson County Sheriff
Posted: Wed Feb 15, 2012 10:23 am
by Rex B
I think I'd go with (in range of his mic and video camera
"With all due respect, officer, I want it on the record that I do NOT consent to a search of my vehicle."
If he knows he's on shaky legal ground, he may decide it's not worth it.
If he searches the vehicle, and a court case develops, you may have a legal basis to contest the legality of the search.
Re: incident with Johnson County Sheriff
Posted: Wed Feb 15, 2012 11:58 am
by CheckonChico
Rex B wrote:I think I'd go with (in range of his mic and video camera
"With all due respect, officer, I want it on the record that I do NOT consent to a search of my vehicle."
If he knows he's on shaky legal ground, he may decide it's not worth it.
If he searches the vehicle, and a court case develops, you may have a legal basis to contest the legality of the search.
Interesting point especially when you take into account what happened afterwards. He searched the truck and lo and behold...he found an empty beer can behind one of the seats.
long story short I got cited for open container and speeding .
Well I obviously do not want this on my clean record so I get an attorney, explain my case and he takes over. I never had to show up to court, he handled it all and presented himself for me. After it was all said and done the judge dropped my open container charge and kept the speeding ticket off my record. I always wondered how my attorney pulled it off and wandered if maybe the officer not getting consent had something to do with it. I probably shoulda asked my attorney but I was just excited to get it over with
Re: incident with Johnson County Sheriff
Posted: Wed Feb 15, 2012 12:22 pm
by Rex B
Good for you!
I do love a happy ending. Well, except for the attorney fees.
Re: incident with Johnson County Sheriff
Posted: Wed Feb 15, 2012 12:30 pm
by CheckonChico
So do I! They weren't actually bad at all, much cheaper than what the fines woulda been
Re: incident with Johnson County Sheriff
Posted: Wed Feb 15, 2012 12:33 pm
by LabRat
I'm not a lawyer, so this is worth exactly what you paid for it.
"IMHO", I suspect that upon your admission that you had been drinking prior to the operation of your truck, coupled with the smell of ETOH on your breath, he had probable cause to suspect a crime was in progress.
IMO, that's all the justification he needed. He had already determined you were not intoxicated, but you had previously given him enough information to suggest that there was a high potential of a crime (open container) in progress
While I agree that being nice to the police is paramount, there is no requirement to aid a criminal investigation if you're the suspect.
The US 5th Amendment states "No person...shall be compelled in any criminal case to be a witness against himself...", by admitting to the alcohol use, you did just that.
He already had smelled your breath, so its likely he could draw probable cause from that observation alone; but you firmed up his suspicion by your comment.
The 5th Amendment gets a bad rap, but it is (and was) intended to protect the common folk from inadvertently giving information (even truthful information) that can later be used against you in court.
If he was on shaky ground before your admission, it appears to me he got a firmer stance when you spoke. Noble? maybe......good for you? Probably not so much.
Just my opinion. Nice is one thing, conviction by your own admission is something else.
LabRat
Re: incident with Johnson County Sheriff
Posted: Wed Feb 15, 2012 12:37 pm
by Keith B
CheckonChico wrote:
Interesting point especially when you take into account what happened afterwards. He searched the truck and lo and behold...he found an empty beer can behind one of the seats.
long story short I got cited for open container and speeding .
.......
Legally, per the statute you were in violation, wheter you had been drinking in the vehicle or not.
ยง 49.031. Possession of Alcoholic Beverage in Motor Vehicle.
(a) In this section:
(1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
(2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:
(A) a glove compartment or similar storage container that is locked;
(B) the trunk of a vehicle; or
(C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.
(3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.
(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:
(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or
(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.
(d) An offense under this section is a Class C misdemeanor.
(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.
As for probable cause, the smell of alcohol, as I stated earlier, is usually enough to justify probable cause for a search, especially in a no open container state like Texas.
Sounds like you got a good lawyer and he was able to get the charge it dismissed. And, Open Container is no biggie as long as you weren't charged with DWI.
Re: incident with Johnson County Sheriff
Posted: Wed Feb 15, 2012 12:51 pm
by jmra
It sure seems to make things a whole lot easier when you are able to honestly answer the officer's question about drinking with a resounding "no sir".
Re: incident with Johnson County Sheriff
Posted: Wed Feb 15, 2012 12:59 pm
by Beiruty
At one time, I had carried and an consumed non-Alcholic (0.0%) Malt drink in my Vehicle. The container, looks like a beer bottle. Would I get in trouble if sighted and pulled over by cop? Maybe I will be cited for wasting their time 