Walking down road with a cup, probable cause to get stopped?

[hattmall]

What is the name of your state? Georgia - The City is Statesboro

Some friends and I were walking on the sidewalk carrying red plastic cups. A police officer pulled up and asked us if there was any Alcohol in the cups. I asked him if I had to answer the question and he said yes or I will take you to jail for obstruction. So I told him there was and he made us pour them out and gave us all citations for an open container. Was the initial contact legal, did I have to answer the question? I later asked him and he said that he knew there was alcohol in the cups because they were solo cups which are known to contain alcohol as I am in a college town. He also said that he could smell the alcohol, but he also said that even after the cup was empty he could still smell the alcohol coming off of us. (Possibly negating his original suspicion based on the fact that he could smell alcohol in the cups) Our City has a municipal ordinance that states the following:

“It shall be unlawful for any person to have in his or her possession any alcoholic beverages in any open container while on the public streets, sidewalks or rights-of-way, or in any public or semipublic parking facility within the city.”

It also states:

“This prohibition shall not apply to any property owned or managed by, or affiliated with the state board of regents.”

I was on a sidewalk, but the sidewalk was in front of some dorms. Which could possibly make it board of regents property, and it was a city police officer.

My question is does the police officer have the right to, simply because I am holding a cup, suspect that I am committing a crime? We weren't loud or stumbling or anything like that either. Also we are all over 21.

Also one last thing is that the ordinance states a maximum $150 fine. He wrote the tickets for $160, does that have any bearing? Thanks, any help is appreciated.

[justalayman]

Bottom line:

He approached you and asked you a question. Totally legal. You had the opportunity to either keep walking or stop. You stopped. He did not detain you.

You could have lied or failed to respond but based upon what you posted, he would have had probable cause to take this to the next step with or without your permission.

You probably saved yourself a night in jail by cooperating or at least some additional citations.

[CdwJava]

Originally Posted by hattmall

Was the initial contact legal, did I have to answer the question?

The contact was legal as it was consensual. No, you did not have to answer his question. However, if he could see the head on it (presuming it was beer), or smell that it was alcohol, then the issue is moot as he knew what it was.

He also said that he could smell the alcohol, but he also said that even after the cup was empty he could still smell the alcohol coming off of us.

Well, there ya go. That might well create sufficient cause for him to ahve inspected the cups anyway.

I was on a sidewalk, but the sidewalk was in front of some dorms. Which could possibly make it board of regents property, and it was a city police officer.

Then find out who maintains the sidewalks or the street.

My question is does the police officer have the right to, simply because I am holding a cup, suspect that I am committing a crime? We weren't loud or stumbling or anything like that either. Also we are all over 21.

He has a right to make contact with anyone he wants ... if he smells or sees the alcohol then he has reason to believe the ordinance is being violated. If you were indeed on university property the entire time and the ordinance under which you were cited does not apply to this property, then you might be able to weasel out of it.

Also one last thing is that the ordinance states a maximum $150 fine. He wrote the tickets for $160, does that have any bearing? Thanks, any help is appreciated.

The additional fee could be a filing fee or court processing fee. Ultimately it will be the court that will assess the fine.

- Carl

[hattmall]

"The contact was legal as it was consensual. No, you did not have to answer his question. However, if he could see the head on it (presuming it was beer), or smell that it was alcohol, then the issue is moot as he knew what it was."

It was not beer so he couldn't have seen it, also he was in a car driving down the road when he first saw us and pulled beside us and then asked what was in the cup. I attempted to keep walking and he pulled in front of me and said stop and got out and that's when I asked if I had to answer the question and he said yes or go to jail. (But I didn't have to answer or or even stop walking???)

There was no way he could smell alcohol until he was out of the car and walking within a few feet of us. He never did actully smell our cups he just made us pour them out.

In the future how should I deal with a situation like this in order to not stop and not answer the questions if I am not required to do so by law. I was told if I didn't answer I would be taken to jail for obstruction, would this have been legal? (Fifth Amdendment?) Thanks Again.

[CdwJava]

If he orders you to stop or come to him (as opposed to asking if you could come over and talk), then it can be argued that you were detained. A detention requires some reasonable suspicion that you might be up to some form of unlawful activity. Whether the officer can articulate this in court is something none of us can answer as we don't know what he did.

He is certainly free to approach you if he wants to do so, and if he sees or smells the contents of the cup - or smells the odor of alcohol emanating from your person - then he likely has sufficient cause to inquire further.

You can always refuse to answer or simply tell him that you are exercising your Fifth Amendment right.

One thing you can ask right away is, "Am I free to go?" If the answer is, "No", you can ask why you are being detained. He might not tell you, but he might still have a lawful reason. In any case you do not want to be obstinate and risk arrest.

The best way to avoid the problem is not to go walking around with cups of alcohol. Anything you do if you have alcohol is up to you - and it is a balancing act. You do not know what the officer knows, and you risk arrest if you fail to comply with his orders.

In this instance you can always hire an attorney to fight the issue on the detention and see if he can articulate good cause, but I suspect the cost of an attorney may be ten to twenty times more costly than the fine.

- Carl

[tranquility]

A reasonable person who has a police officer drive beside and ask a question and then, when no response is had, drives his car into the path of the person and tells him to stop, would not feel he is free to leave. I don't think a case could be made this was a consentual encounter--the OP was detained. If the OP turned and ran, could he be arrested for obstruction? Yes.

Was there reasonable suspicion to detain the OP? That is the real question. Absent other facts, like the officer just busted up a party where all the people were drinking alcohol out of cups just like the OP, RS may still be possible and is where a fact-finder comes into play. The officer will state that through the years on the force, he has seen hundreds of students with cups just like the OPs and they always contained alcohol. In his training and experience, under-age students walking on campus with large plastic opaque cups are in possession of alcohol.

Just like a person outside a liquor store with a bottle or can in a brown paper bag where everyone knows what is going on, the judge or jury will have to determine if those facts give rise to a reasonable suspicion.

You are never required to incriminate yourself by answering a question. You have the right to remain silent, although some states have a statute were you must supply identifiying information. The Supreme Court has found these statutes legal. Even if there is not a statute in your state, if you are legally detained it is not entirely clear if you have to identify yourself and it might be a good idea to do so rather than be the test case or in case the officer has knowledge of which you are unaware.

[hattmall]

Thanks for all of your help.

I will definately be walking down the road with solo cups of water and encouraging my friends to do so. Thanks

Also how might I go about a motion to dismiss or is that not even valid with this? I mainly just don't want this on my record. I have access to a lawyer for free from the university but I have to make an appointment 3 weeks in advance and usaully 30mins is the most time he can spend with one person, but if Im prepared when I go in he can help with any paperwork.

[tranquility]

I don't know the exact process in Georgia, but, when given the chance you will plead "not guilty". Then the process for trial begins.

If you are going to fight it, you will need to get an attorney. (Usually the attorney at the university is not for this kind of thing. Your time with him is limited.) That means going out and hiring one. It will be expensive and there is no guarantee you will win.

[CdwJava]

Originally Posted by hattmall

I will definately be walking down the road with solo cups of water and encouraging my friends to do so. Thanks

I'm sure THAT will happen.

Just don't litter with the cups as that will give yet another reason for them to stop you.

- Carl