vehicle search

i go to school in north carolina and was pulled over the other night, not driving. the driver had not been drinking and was asked to step out and take a breathalizer. after blowing 0.00 the officer then asked us where the alcohol was implying no preconcieved notions or reasons for doing so, trying to trap us. after replying there was none he proceded to search the vehicle without proper justification. we had been drinking so the smell was on our breath, however, our driver had not. does this give him the right to search the vehicle for alcohol or any other parifinalia(sp?)?

Did he find anything?
Here is my question, If an officer conducts an illegal search and doesn't find anything, is the search still illegal?
Officers actions are justified in court when the Judge says the search was valid or not valid.
It is a tough call to speculate on the search if we don't have all of the officers observations.
But back to your question, is the odor of an alcoholic beverage enough probable cause to look for an open container?
Answer: Maybe

[Rochelle]

Let me answer this as best I can based on what you have posted. I don't know why he pulled you...you didn't say or I missed it. However, if he smelled alcohol, regardless of who he smelled it on, that was probable cause enough to search for the container. Not being rude, but very few people when drinking and driving and asked by the officer where the containers are will tell the officer the truth. In this county, it is a dry county and even if you haven't been drinking you will get a ticket for having it in the car. And if you have an open container you'll spend the night in jail.

Are you serious Rochelle? Ain't that a crock, I would of never guessed that would be a PC to search the car. Are you a cop? Would that hold up in court?

Lemme give ya a scenario. Say a cop pulls a vehicle over, no one has been drinking. But cop says he smelled alcohol which gives him PC. So the cop searches the vehicle and finds something illegal (pot, gun, etc.) I find it hard to believe that wouldn't be considered an illegal search and seizure. Now don't go gettin' me wrong, ain't saying you're lying or nothing of the sort. Just saying it's hard for me to comprehend.

first off thank you for responding. what happened was we made a turn and the driver was adjusting the heat/radio or something and crossed over the yellow lines, blah. so they assume he's drunk. after pulling us over and taking license and registration they pull him out and breathalize him. he blows a 0.00!! TWICE! obviously, after doing it twice you can probably make the assumption that he is not drunk. the officer makes him wait behind the car, asking him no further questions. comes to the drivers door, opens it and asks, if there was any alcohol in the vehicle? obviously we respond no.

he leaves and then comes back, asks us again, if there was any alcohol in the vehicle we say there was none. he then leans over the drivers seat and begins to look around, in which case he sees the container. we had an empty glass in the car and two half empty bottles in the box, just because. he asks whose it was and the 25yr old in the car says it was his. they ask us whose been drinking, and we respond truthfully, myself(19) and the 25yr old. he then takes ME out of the car and breathalizes me...like i'm lying? and i wasn't even driving. then, after 10min. then in the car for another 45min. they write 3 of us out of the five $115 tickets. open containers in the vehicle for myself and the driver and providing to minor/open container to the 25yr old. now i thought that only the driver got in trouble for open container? maybe i'm wrong, but...?

Rochelle, where we were was a dry county and that's where we go to school. however, that doesn't mean that you cannot have alcohol, it just means you cannot purchase it in that county. because the consumption and posession of alcohol is not illegal, anywhere.

i don't know what to do. should we try to fight it in court? or is it even worth our time/money? do we have a strong case, or is it just some kids v. cops?

i don't know, but thank you for your help.

Do not know about your state laws but here in Texas if there is an open container in the vehicle, ALL can be charged with a Class C Misdemeanor and be assessed a $500 fine, whether they were drinking or not, Dry county or not.

let me get this straight-one beer can,four passengers equals four tickets?

In Ca.
An open container is PC to search the vehicle for more open containers.
Passengers can be cited for possession.
Drivers can be cited for allowing passengers possession.

I think the only aurgument you might have in court is if there is a doubt as to who actually possessed the open container.
But if everyone who got cited smelled of alcohol and possessed an open container, then take "the deal."

If I smell alcohol, I have the right to check for containers. And it is the responsibility of whomever is driving the car to have no containers in the vehicle, so he/she will get a ticket if there are any, drinking or not. I'd like to say I'm glad you and your friends did have a designated driver and its unfortunate that you had containers in the vehicle. But at least you were trying to do the right thing.

Originally posted by curtisd
let me get this straight-one beer can,four passengers equals four tickets?

Correct, here in Texas that is. The law went into effect September 1, 2001.

thanks for the responses. my only concern was that when we were asked if we had been drinking we responded, "yes." so, it was on our breath and we didn't deny that. but did he have the right to just enter my vehicle? should we just pay the tickets and get it over with? will this go on my insurance, considering it was my vehicle?

Lieutenant, since you are a cop I got a question for ya. If I was driving in your state and you pulled me over and smelled beer on my breath does that mean you can search for ONLY open containers? or does that give you the right to search the vehicle for anything and everything?

Lieutenant...if you were to breathalize the driver and find that he had blown a 0.00, TWICE; would you keep on interogating the driver/passengers or would you simply write the driver his/her ticket for wreckless driving (he swerved, on accident, and crossed the yellow line...that's why we were pulled over)?

Here's the thing...
Every officer in this position is going handle the situation in his own way. Did this officer go overboard?
We can guess, but it's not a fair guess unless we have the officers observations.

Every person who won't take responsibility for their actions will say they were unjustly arrested, cited, stopped, etc, somehow it turns into "the officer was out of line."
Sometimes officers do overstep their authority, and when they do the court will account for that (usually by dismissing the charges).
But the facts speak for themselves here, the officer did see open containers, which these guys were in possession of, and then got cited for. How does that translate into the officer being wrong?

They should stop whining about the how officer over stepped his authority and take responsibility for breaking the law.

This is just a case of good investigative police work.

well, mikedani, i don't believe that i'm whining, so you can stop insulting me now. i don't think that it was good investigative work, it was just a cop being a jerk. he had NO reason to go as far as he did. and i will state my question again if you want to actually answer that... "if the officer pulls us over for a traffic violation, as crossing the yellow line, then search the car?"