Does an open container allow a further search of a motor vehicle?
This question comes from an officer in Texas, though it’s going to apply just about anywhere.
Here’s the scenario. A Texas officer conducts a traffic stop for speeding. While at the window he observes a can of beer in the center console. The driver confirms it’s an open beer.
Open container is not an arrestable offense in Texas, and the driver is not suspected of being intoxicated.
Obviously we can ask the driver to hand over the beer. But in this scenario he refuses.
Is this probable cause to search the passenger compartment, in order to enter the vehicle, retrieve the plain view evidence, and search for additional open containers?
This is going to be a hard yes.
Run the probable cause check
How do you run the probable cause check?
Is the open container evidence? Check.
Do you have probable cause? Is there a fair probability that more containers could be in the vehicle? Check.
So imagine we’re not going to arrest this person. At most we’re going to cite them. Do you want to get the other open containers out of the vehicle before letting them loose?
The answer is yes.
“One and done” is not the rule
Is it one and done after the first container?
Some people say: but Anthony, you’re one and done. You have one can of beer, you get one citation. I’m not going to give you six citations if you have six open containers.
And I say that’s fine. But let the court decide the punishment.
Maybe the court is going to be less lenient on a person driving around with six open containers than with one. That’s part of the criminal justice process, to find the evidence against the person that helps convict them, that shows intent, that shows they’re a flagrant violator of the open container law.
Why keep searching after you find one?
So the point is this. Just because the law does not require it, that doesn’t mean you stop searching once you have enough evidence. You get to recover the other evidence as well.
The case to look at
I’ve built up a collection of these cases. The one that best summarizes the cases from around the United States is State v. Rincon, out of Iowa, February 2022.
That opinion summarizes a lot of others, so it’s a good starting point if you want to research this issue further in your own state.
I hope that makes sense. Until next time, my friends, stay safe.
Related from Blue to Gold
- Illinois Courts on Marijuana Odor and Probable Cause
- Single Purpose Container Doctrine
- COPS: Think twice before breaking that lock!
This article is an edited transcript of Roadside Chat Ep. #336. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
