TN Open Container Law

[Good_Steward]

Probable cause is that there are individuals consuming alcoholic beverages in a motor vehicle. A stop to determine if the driver has been consuming is a legal stop. The officer can very easily articulate that.

So, even if it's legal for a passenger to have a drink, that would be reasonable suspicion to pull over a car? Even if the car is not swerving, erratic, etc.??

[Fallguy]

Probable cause is that there are individuals consuming alcoholic beverages in a motor vehicle. A stop to determine if the driver has been consuming is a legal stop. The officer can very easily articulate that.

I'm going to guess you have done this before and all has went well procedurelly and through the courts....so no sense in arguing can you do it and/or if the court system finds it legal.

But as has been said, even if the driver has consumed (do not condone or recomend), that is not illegal in-and-of-itself only his possession of an open container, that you did not see or his being under the influence which absent some difficulty in operating the vehicle you could not know from seeing a passenger consume.

I never thought observing a single individual conducting a legal activity was enough PC to detain everyone in a certain area with him...but hey, what I do I know?

...and all those amusing me is not required....it has been achieved...

Of course I was willing to leave it at I didn't find it funny......

[TNRobocop]

So, even if it's legal for a passenger to have a drink, that would be reasonable suspicion to pull over a car? Even if the car is not swerving, erratic, etc.??

A vehicle, traveling upon a public roadway, can be stopped for investigation if the officer has reasonable suspicion of a crime. A report from a citizen or personal observation would fit that description. Based upon the officers personal experience and training, he knows that there is a high probablity that not just the passenger could be drinking, i.e. the driver could be consuming also.

To develop beyond reasonable suspicion to probable cause, a traffic stop is made of the vehicle, or contact is made with the occupants if they are in a parking lot for example.

The officer determines that the driver is not consuming or under the influence, vehicle is sent on it's way.

If the driver is consuming or seems to be intoxicated, than SFST is conducted if consent of the driver is obtained.

If the driver is considered under the influence, he does the breathilyzer or blood draw (if he consents), then he goes to jail.

If not, he is cited for the open container he was consuming from, and released.

You guys are reading way more into this than there is and making a mountain out of a molehill.

[Guest Jamie]

Probable cause is that there are individuals consuming alcoholic beverages in a motor vehicle. A stop to determine if the driver has been consuming is a legal stop. The officer can very easily articulate that.

Nope. Individuals consuming what appears or may be alcoholic beverages give reasonable suspicion. Erratic driving coupled with that give probable cause. Especially if you know it's perfectly legal for passengers to be drinking alcohol in a vehicle.

If the driver is operating the vehicle properly and without apparent problem, and you can't tell for certain what the the passengers are drinking, then at least around here, you'd better leave 'em the hell alone.

[Fallguy]

Open Container is a misdemeanor, I didn't think LEOs could act on a misdemeanor unless they witness it themselves....so even a citizens report shouldn't be enough to stop and detain the vehicle without some illegal activity being observed by the LEO, which the passenger consuming is not. Otherwise what stops people from falsely reporting vehicles for things all the time just so they can get their jollies by having a LEO stop someone not observed by LE doing anything wrong.

[Guest Jamie]

Fallguy, part of the problem here is something I've tried to get across to several people here: Just because the laws might be identical, from one place to the other, the rules regarding their enforcement are always different.

Things are not done the same way here as they are in Davidson county. Nor are they the same way here or there as they are in another state. And that's even when the laws are exactly the same.

Robo probably can do things the way he's outlined them, there in Nashville. But I'm quite sure that if he moved someplace else, he'd have to re-learn many things regarding his job. It been that way with every cop I know who's ever changed locations, or sometimes just departments. ( Going from a SO to a PD, even in the same city/county, for instance. )

The point being that the law just isn't simple or clear-cut, even when it looks like it should be. And people applying them or enforcing them differently just doesn't help.

Which is why there're so many attorneys, I guess.

[TNRobocop]

Correct it is a MD. DUI is one also, but I can't just cite on a DUI.

By the officer investigating on his own, he will then see it committed in his presence if it is in fact true.

Citizens call in complaints, officers go investigate.

[TNRobocop]

Yes Jamie different departments, different procedures.

I have worked LE in other states, both with city departments and a sheriff's office.

Pretty much the same across the board though with regards to drinking and vehicles.

You are right that there are some departments/areas more lax about open containers.

I just haven't seen it in person yet.

[Fallguy]

Fallguy, part of the problem here is something I've tried to get across to several people here: Just because the laws might be identical, from one place to the other, the rules regarding their enforcement are always different.

Things are not done the same way here as they are in Davidson county. Nor are they the same way here or there as they are in another state. And that's even when the laws are exactly the same.

Robo probably can do things the way he's outlined them, there in Nashville. But I'm quite sure that if he moved someplace else, he'd have to re-learn many things regarding his job. It been that way with every cop I know who's ever changed locations, or sometimes just departments. ( Going from a SO to a PD, even in the same city/county, for instance. )

The point being that the law just isn't simple or clear-cut, even when it looks like it should be. And people applying them or enforcing them differently just doesn't help.

Which is why there're so many attorneys, I guess.

I see what you are saying.....but if it is a state law, shouldn't what is considered legal enforcement of it be the same statewide?

But I know it's not because most people don't ever push an issue past the local level, for various reasons, one being money.

Shoot I remember when Steve McNair was stopped for DUI and possession of a handgun while intoxicated (He had a HCP). It was thrown out because he never swerved (actually I think he did, just didn't cross either line) or did anything in the judge's opinion that gave the officer PC to stop the vehicle in the first place.

So if a driver can be drunk and have it tossed because something illegal wasn't witnessed, I'm not sure how a passenger doing something legal can be enough PC to stop the driver. But as you said...I guess that is why there are lawyers...and also why I didn't think it funny or a very good attempt to lighten the mood.

[Guest Jamie]

Yes Jamie different departments, different procedures.

I have worked LE in other states, both with city departments and a sheriff's office.

Pretty much the same across the board though with regards to drinking and vehicles.

You are right that there are some departments/areas more lax about open containers.

I just haven't seen it in person yet.

Y'know, there's a saying that I've heard many times from folks who work in various neighboring departments, that when I first heard it, confused the hell out'a me... but after encountering what they were referring to, finally made sense. I'll leave y'all with it, and all the connotations it brings, as my final contribution to this thread:

"There's federal law, state law, local law... and then Metro/Davidson co. Police Department law."

[Chucktshoes]

Y'know, there's a saying that I've heard many times from folks who work in various neighboring departments, that when I first heard it, confused the hell out'a me... but after encountering what they were referring to, finally made sense. I'll leave y'all with it, and all the connotations it brings, as my final contribution to this thread:

"There's federal law, state law, local law... and then Metro/Davidson co. Police Department law."

[kb4ns]

...so even a citizens report shouldn't be enough to stop and detain the vehicle without some illegal activity being observed by the LEO, which the passenger consuming is not. Otherwise what stops people from falsely reporting vehicles for things all the time just so they can get their jollies by having a LEO stop someone not observed by LE doing anything wrong.

This has been dragged through the courts so many times, I can't even remember what's "official" to be honest. IIRC, the courts have ruled that a complaint form a citizen was enough to detain someone long enough to investigate. It actually happens quite often that a citizen calls in a "possible DUI". My way of dealing with it has always been to observe said driver. If I see any violation, and I mean any violation, I make a stop - I don't care if it's a brake light out, improper display of tags, or failing to signal a lane change. If they check out okay, off they go. If I follow them and find no violation, I don't make a stop (if I follow them a good ways without a violation, they're probably not intoxicated). It's just easier that way when it gets to court. An attorney may argue that I could or couldn't stop a driver based off of a complaint, but there's no arguing a stop made after a violation.

[Fallguy]

This has been dragged through the courts so many times, I can't even remember what's "official" to be honest. IIRC, the courts have ruled that a complaint form a citizen was enough to detain someone long enough to investigate. It actually happens quite often that a citizen calls in a "possible DUI". My way of dealing with it has always been to observe said driver. If I see any violation, and I mean any violation, I make a stop - I don't care if it's a brake light out, improper display of tags, or failing to signal a lane change. If they check out okay, off they go. If I follow them and find no violation, I don't make a stop (if I follow them a good ways without a violation, they're probably not intoxicated). It's just easier that way when it gets to court. An attorney may argue that I could or couldn't stop a driver based off of a complaint, but there's no arguing a stop made after a violation.

I think the courts have ruled that if a LEO reports his observations to another LEO (IOW He saw X car doing Y action) then that is enough for the second LEO to make a stop....but still pretty sure misdemeanors have to be witnessed by a LEO first and not just reported by a non-LEO citizen.

As far as making a stop on a reported vehicle if you observe a violation, even a minor one, that is fine....no problem with that. My main discussion has been about if no violations are observed.

[kb4ns]

I think the courts have ruled that if a LEO reports his observations to another LEO (IOW He saw X car doing Y action) then that is enough for the second LEO to make a stop....but still pretty sure misdemeanors have to be witnessed by a LEO first and not just reported by a non-LEO citizen.

As far as making a stop on a reported vehicle if you observe a violation, even a minor one, that is fine....no problem with that. My main discussion has been about if no violations are observed.

As far as one officer observing a violation and another making the stop or arrest, there is a term for it, but I cannot think of what it's called for the life of me. It's something like "police team doctrine". It's well established in our courts and we'll never have an issue with the legality of it.

As far as the citizen complaints, I remember a case or two going through several courts, getting overturned everytime it got to a higher court. I honestly don't remember what the last ruling was, but regardless, I won't make a stop without a violation.

[Fallguy]

As far as one officer observing a violation and another making the stop or arrest, there is a term for it, but I cannot think of what it's called for the life of me. It's something like "police team doctrine". It's well established in our courts and we'll never have an issue with the legality of it.

I agree it is legal and has been established....and I don't have a particular problem with it.

As far as the citizen complaints, I remember a case or two going through several courts, getting overturned everytime it got to a higher court. I honestly don't remember what the last ruling was, but regardless, I won't make a stop without a violation.

What more could anyone ask far.....

Edited October 18, 2010 by Fallguy

[DaveTN]

Shoot I remember when Steve McNair was stopped for DUI and possession of a handgun while intoxicated (He had a HCP). It was thrown out because he never swerved (actually I think he did, just didn't cross either line) or did anything in the judge's opinion that gave the officer PC to stop the vehicle in the first place.

So if a driver can be drunk and have it tossed because something illegal wasn't witnessed, I'm not sure how a passenger doing something legal can be enough PC to stop the driver. But as you said...I guess that is why there are lawyers...and also why I didn't think it funny or a very good attempt to lighten the mood.

And that was a terrible miscarriage of justice. Steve McNair tried to take responsibility for what he did. He blew a .16 and admitted he was drunk. He even got on TV and admitted he made a mistake and that was not the example he wanted to set.

The press tried to turn the public against the cop that stopped him.

If you (or anyone else) think you have enough horsepower to get a Judge to watch a video of you swerving and then rule he didn’t think you were swerving “enoughâ€, and then have a DA that decides to not appeal that ruling; go for it. That just is not how it works.

Also a Witness told that Officer that they saw McNair driving after he left a bar and it appeared drunk. That would have flown in any court anywhere. Of course the DA didn’t even try to use that.

That Judge and the DA should be ashamed. And if that had been a cop getting off a DUI that he had admitted to instead of Steve McNair you and most others here would have been freaking out.

That cop did his job and took a drunk off the street. It’s a shame his department stood by and did nothing.

[Guest 270win]

As far as I understand the TN state liquor law, only the passengers can have open drinks in the cars. The driver cannot. If I'm driving, I don't care if a friend is having a drink in my car. It doesn't affect my driving. I can't get drunk or a DWI off the beer he is drinking in the passenger seat.

I'm pretty sure Mississippi does not have any sort of 'open container law.

It is against the law in Arkansas to drink on the public road. This includes in a car. There is no such thing against the law in Arkansas as just having an opened beer or a cup of liquor in a car/in public.

[East_TN_Patriot]

What would be more important? Real criminals? Like Robbers and rapists?

I don’t know where you live or where you worked as a cop, but if the chances are higher that you or your family will be injured or killed by a “real criminal” as opposed to a traffic offender; you should think about moving.

Open container laws are simply part of aggressive DUI enforcement. My confusion comes from you saying you were a Police Officer and then making statements like these laws are silly and those that enforce them are lazy or want easy arrests. DUI enforcement is not a game. The vast majority of states have decided that open container laws are a part of aggressive DUI enforcement. It appears that some county governments in this state also disagree with the legislator’s stamp of approval on drinking in a vehicle.

I’m sorry your service left you so disillusioned; Police work can do that with some people.

Your comment suggests that you find it impossible to believe that someone who was a cop actually has the ability to break free from the jaded police subculture and its inherent belief that all people are either dirtbags, wannabes, or *******s. Sorry, but I am an educated cop who now teaches college classes in criminal justice so our society can have law enforcement officers who respect rule of law, the Constitution, and their role as public servants.

What left me disillusioned were all of the stupid laws that I saw do nothing except make criminals out of otherwise law-abiding people. Perhaps you should read up on the history of law in western society. There are two categories: 1) mala en se (crimes that are considered wrong in themselves and have nearly universal agreement regardless of place or time) and 2) mala prohibita (crimes that are defined that way by a specific society and do not have universal support). Open-container laws are a form of the latter. I have made hundreds of DUI arrests in my time and virtually all of them involved me making a very detailed investigation that included vehicle observation, roadside sobriety evaluations, and then a breath or blood test if they submitted to it. I never lost a DUI case in court. NONE of these would have turned out any differently because neither of the states I policed in allowed any open containers in the vehicle. I regularly stopped drunk drivers who had open containers with them although it was illegal. With the exception of one particular case when I worked in Florida none tipped a beer back in front of me. In fact, most had the thing tucked down by their leg or tossed it in the floorboard when they saw my patrol car. I guess you won't like my argument that DUI checkpoints are a violation of the 4th Amendment, but I digress.

I'm not particularly concerned about my family being the victim of a violent crime, primarily because I know that the crime statistics show violent crime has been on a steady decline since the early 1970s. I'm definitely not concerned about someone riding in the passenger seat of a car drinking a beer because they pose absolutely no risk to me or anyone else. If any officer demands that a violation as senseless as an open container law for passengers be made a crime for the purpose of making it easier for officers to make DUI arrests, I do find that abhorrent. If an officer can't detect a drunk driver without something as obvious as an open container, they really need to hone their skills. Using the standardized DUI detection cues, it is rather easy to detect a DUI. Using your argument, we should outlaw all sorts of behavior on the off-hand chance that it would make it easier for officers to make other criminal charges. That is a very dangerous attitude and one that I will never support. We have rights as citizens of the United States to live our lives free from unreasonable interference from government agents, especially the police. When the police begin to encourage the creation of laws for the express purpose of creating precursory stops, we are heading towards a society where liberty no longer has any meaning and freedoms are regularly taken away "for your own protection" and "for the kids."

But kind of like an earlier post said, being a libertarian is not popular and requires folks to exercise their brain and question reality, which most people are unwilling to do.

Edited October 19, 2010 by East_TN_Patriot

[East_TN_Patriot]

And that was a terrible miscarriage of justice. Steve McNair tried to take responsibility for what he did. He blew a .16 and admitted he was drunk. He even got on TV and admitted he made a mistake and that was not the example he wanted to set.

The press tried to turn the public against the cop that stopped him.

If you (or anyone else) think you have enough horsepower to get a Judge to watch a video of you swerving and then rule he didn’t think you were swerving “enough”, and then have a DA that decides to not appeal that ruling; go for it. That just is not how it works.

Also a Witness told that Officer that they saw McNair driving after he left a bar and it appeared drunk. That would have flown in any court anywhere. Of course the DA didn’t even try to use that.

That Judge and the DA should be ashamed. And if that had been a cop getting off a DUI that he had admitted to instead of Steve McNair you and most others here would have been freaking out.

That cop did his job and took a drunk off the street. It’s a shame his department stood by and did nothing.

So... you are saying that the use of the exclusionary rule to suppress illegally obtained evidence due to a stop not conducted upon probable cause like the Constitution requires is a "miscarriage of justice"??? It seems you don't understand what the purpose of due process is in our legal system. Our due process rights guarantee our freedoms and the ideology of our justice system says that if the government is going to take away your freedom, they must adhere to the requirements set forth in the law. This idea is so important that we are willing to let a guilty man go free in order to preserve our rights and rule of law.

I appreciate your passion for fighting crime and enforcing DUI laws, believe me, nobody hates drunk drivers more than I do, but I find what sounds like your blatant disregard for Constitutional rights and due process concerning. Just to be clear, are you suggesting that it is OK for officers to disregard probable cause in the name of making arrests? Incidentally, one of the other big reasons I became disillusioned is due to the tremendous amount of unethical behavior of officers I saw at many levels of law enforcement who would do just that - you know, stuff like saying they saw things they didn't really see (like they actually saw the guy toss the bag of crack that is laying on the ground when they didn't really see it) or "articulating" a report to make their reasonable suspicion or probable cause sound much more solid than it actually was. Yes, I was dressed down by a supervisor once at my department in Kentucky who said I was "too honest."

Edited October 19, 2010 by East_TN_Patriot

[G27]

I'm thankful there are officers like kb4ns and East_TN_Patriot.

[Chucktshoes]

I'm thankful there are officers like kb4ns and East_TN_Patriot.

+1

[Punisher84]

I'm thankful there are officers like kb4ns and East_TN_Patriot.

Sent from my iPhone using Tapatalk

[Guest Mad4rcn]

me too !

[mikegideon]

I'm thankful there are officers like kb4ns and East_TN_Patriot.

What he said

[Guest mosinon]

I'm thankful there are officers like kb4ns and East_TN_Patriot.

I am saddened because East_TN_Patriot isn't an officer anymore. I'm sure East_TN_Patriot is doing great work teaching but I haven't read posts I agree with more strongly in a long time.