4th amend Q

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clshopeful

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4th amend Q

Postby clshopeful » Thu Sep 15, 2016 4:47 pm

Situation: you are drinking alc out of a red cup in public. Cop suspects it's alcohol; but isn't sure. Is he allowed to take and and smell it? (Search)? Does this fall under exigent circumstances since he doesn't have time to go get a warrant (suspect will be gone)?

BigZuck

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Re: 4th amend Q

Postby BigZuck » Thu Sep 15, 2016 5:00 pm

Cops as a rule have a super strong sense of smell. Every last one of them. Haven't you ever watched "Cops?"

"The distinct odor of alcoholic beverage"

They wouldn't even need to take the cup, they could smell it from a mile away. And a sniff ain't a search.

Eta: *Not legal advice obviously*
Last edited by BigZuck on Thu Sep 15, 2016 5:05 pm, edited 1 time in total.

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sublime

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Re: 4th amend Q

Postby sublime » Thu Sep 15, 2016 5:01 pm

Is this a request for legal advice or a just dumb hypo? (did this happen for you or somebody you know)

clshopeful

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Re: 4th amend Q

Postby clshopeful » Thu Sep 15, 2016 5:02 pm

sublime wrote:Is this a request for legal advice or a just dumb hypo? (did this happen for you or somebody you know)


No, just curious. Can't figure it out

clshopeful

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Re: 4th amend Q

Postby clshopeful » Thu Sep 15, 2016 5:05 pm

But what if a cop isn't totally sure it's alcohol? Smells a bit, but not totally sure. Can he then take the cup to smell it closer?

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poptart123

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Re: 4th amend Q

Postby poptart123 » Thu Sep 15, 2016 5:05 pm

I always carry my alcohol in a metal lock box with a straw that slides into it if I drop the straw. That way the cop can't search my "cup" without a warrant.

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sublime

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Re: 4th amend Q

Postby sublime » Thu Sep 15, 2016 5:06 pm

As Zuck indicated, cops can do whatever they want, basically. They probably have reasonable suspicion to stop you, and when they find out it is alcohol, probable cause to arrest you.

(I think at least, I tried to forget bar shit)

Also, you have westlaw, don't you?

BigZuck

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Re: 4th amend Q

Postby BigZuck » Thu Sep 15, 2016 5:08 pm

clshopeful wrote:But what if a cop isn't totally sure it's alcohol? Smells a bit, but not totally sure. Can he then take the cup to smell it closer?

Lol you serious bro?

What part of "The distinct odor of alcoholic beverage" don't you understand? Think about every cop you've ever met in your life/seen on "Cops" and that will lead you to the right answer.

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pancakes3

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Re: 4th amend Q

Postby pancakes3 » Thu Sep 15, 2016 6:06 pm

lol glad you're not in my crim pro class

Boltsfan

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Re: 4th amend Q

Postby Boltsfan » Wed Oct 05, 2016 5:56 pm

BigZuck wrote: And a sniff ain't a search.


This is my instinct, although I've never seen this applied outside of the context of drug dogs. You could also make the argument that a person does not have a reasonable expectation of privacy as to the content of an open red solo cup in public; at the very least not to the odors emanating out of said cup.

Real world answer: "I smelled what my years of experience as a police officer has taught me is the smell of alcohol. This combined with the suspect's dilated pupils, lack of coordination, and slurred speech when questioned indicated that the suspect was intoxicated in public."

This won't be on your final though so I wouldn't worry too much about it.

1styearlateral

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Re: 4th amend Q

Postby 1styearlateral » Mon Oct 10, 2016 1:40 pm

A law enforcement officer doesn't need to be a walking alcohol content tester. He/she is allowed to use their knowledge as to what is and what is not alcohol. I can tell what's alcohol and what isn't; I certainly don't need to taste beer to know it's beer.

Also, a cop can stop you temporarily so long as he/she has reasonable suspicion of criminal activity (open container). Not sure if seeing one person with solo cup means that there's alcohol in there but I'm assuming it would come down to context.

BigZuck

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Re: 4th amend Q

Postby BigZuck » Mon Oct 10, 2016 7:53 pm

1styearlateral wrote:A law enforcement officer doesn't need to be a walking alcohol content tester. He/she is allowed to use their knowledge as to what is and what is not alcohol. I can tell what's alcohol and what isn't; I certainly don't need to taste beer to know it's beer.

Also, a cop can stop you temporarily so long as he/she has reasonable suspicion of criminal activity (open container). Not sure if seeing one person with solo cup means that there's alcohol in there but I'm assuming it would come down to context.

All cops have a FINELY TUNED bloodhound-esque sense of smell and you know it. To suggest otherwise can really lead someone asking "Hey so what can cops do???" astray

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