# fourth amendment **URL:** \ **Category:** Factual Questions\ **Created:** [July 9, 2006, 7:45am UTC](https://boards.straightdope.com/t/fourth-amendment/363714 "2006-07-09T07:45:43Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [July 9, 2006, 7:45am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/1 "2006-07-09T07:45:43Z")
I live in a city where I am not allowed to drink alcoholic beverages in public. If I were to drink a beer out of a paper bag and a police officer asked me to pour it out, must I obey? what if I was drinking it right out of the bottle and they asked to confiscate it, can I cliam that beer isn’t in he bottle? ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [July 9, 2006, 7:53am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/2 "2006-07-09T07:53:37Z")
There is a (doctrine/rule of thumb/precept) called ‘plain view’: If an officer of the law can reasonably observe some law being broken, he doesn’t need a warrant to make the evidence of his senses (vision, usually) admissible in court, and the fruits of an investigation launched based on such information isn’t fruit of a poison tree (that is, it’s not the result of an illegal investigation and it is admissible in court). The phrase ‘reasonably observe’ gets batted around in court every so often, but these days it falls short of jimmying open a trunk at a traffic stop or taking an IR camera to troll for potheads. Seeing someone out on a public street drinking out of a beer bottle or a bottle in a paper bag seems to be well within the purview of the plain view rule. ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [July 9, 2006, 7:56am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/3 "2006-07-09T07:56:27Z")
> [@Derleth](#): > > There is a (doctrine/rule of thumb/precept) called ‘plain view’: If an officer of the law can reasonably observe some law being broken, he doesn’t need a warrant to make the evidence of his senses (vision, usually) admissible in court, and the fruits of an investigation launched based on such information isn’t fruit of a poison tree (that is, it’s not the result of an illegal investigation and it is admissible in court). The phrase ‘reasonably observe’ gets batted around in court every so often, but these days it falls short of jimmying open a trunk at a traffic stop or taking an IR camera to troll for potheads. Seeing someone out on a public street drinking out of a beer bottle or a bottle in a paper bag seems to be well within the purview of the plain view rule. How do they know that it’s beer? ---
**Author:** ![CynicalGabe](https://avatars.discourse-cdn.com/v4/letter/c/3e96dc/32.png) [@CynicalGabe](https://boards.straightdope.com/u/CynicalGabe)\ **Post date:** [July 9, 2006, 8:05am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/4 "2006-07-09T08:05:43Z")
> [@copperwindow](#): > > How do they know that it’s beer? Because they have cause to remove it from your hand and check. Even if they have no ‘cause’, try saying no to a cop and see how far it gets you. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [July 9, 2006, 9:36am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/5 "2006-07-09T09:36:39Z")
> [@copperwindow](#): > > How do they know that it’s beer? Because the officer sniffs it. If you refuse to allow him to sniff it, I’m guessing the refusal is admissable as evidence that you had something to hide in that bottle. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 9, 2006, 12:10pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/6 "2006-07-09T12:10:10Z")
> [@Derleth](#): > > Because the officer sniffs it. If you refuse to allow him to sniff it, I’m guessing the refusal is admissable as evidence that you had something to hide in that bottle. I’m not as up on my 4th Amendment jurisprudence as I used to be but I certainly hope that you’re wrong about this. It certainly didn’t used to be that refusing a search constituted evidence of wrongdoing. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [July 9, 2006, 2:17pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/7 "2006-07-09T14:17:32Z")
> [@Otto](#): > > I’m not as up on my 4th Amendment jurisprudence as I used to be but I certainly hope that you’re wrong about this. It certainly didn’t used to be that refusing a search constituted evidence of wrongdoing. If the police can call out a dog to have them sniff your vehicle if you refuse to a search, I don’t see why they can’t sniff the bag themselves. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [July 9, 2006, 3:26pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/8 "2006-07-09T15:26:08Z")
Practical: Good rule of thumb. Always do what the nice officer asks you to do. For example, in this case, letting you pour out the beer is a favor. The alternative is that you get a citation. If you’re a real smart-ass, you might get a ride in a squad car. Won’t matter whether the charges are pursued. You’re out a couple hours, maybe overnight. Not smart, especially if you’re in fact guilty of the offense suspected. Legal: The requisite showing for a search is merely probable cause. This is a relatively low standard. An officer’s experience that people holding their beverage in a paper bag more-often-than-not (and it’s actually north of 90%) are drinking an alcoholic beverage will qualify. In other words, they don’t have to KNOW. They just have to have reasonable cause to suspect. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [July 9, 2006, 3:27pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/9 "2006-07-09T15:27:48Z")
Make that “get a citation AND lose the beer.” ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 9, 2006, 3:58pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/10 "2006-07-09T15:58:06Z")
> [@KRM](#): > > If the police can call out a dog to have them sniff your vehicle if you refuse to a search, I don’t see why they can’t sniff the bag themselves. What is your cite that the police can call out a canine unit if you refuse a search? But my point was not whether the officer could legally sniff the suspect bag himself. My point was that I fervently hope that refusal to consent to a search does not under current jurisprudence constitute affirmative evidence of wrongdoing. ---
**Author:** ![Shagnasty](https://avatars.discourse-cdn.com/v4/letter/s/9dc877/32.png) [@Shagnasty](https://boards.straightdope.com/u/Shagnasty)\ **Post date:** [July 9, 2006, 4:10pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/11 "2006-07-09T16:10:31Z")
This stuff was taken very literally when I was a college student in New Orleans. They had carefully crafted laws so that we could drink almost anywhere at 18 when the rest of the nation had gone to 21. They had laws that said that people could drink in public. There was a small technicality bridge that said that they didn’t want people under 21 drinking openly in public places. Putting it in a cup was 100% understood by everyone to make you safe from any problems and it did even when people were confronted by police officers for other problems. That small philopsophical bridge does hold in some places. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [July 9, 2006, 4:32pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/12 "2006-07-09T16:32:25Z")
> [@Otto](#): > > What is your cite that the police can call out a canine unit if you refuse a search? > > But my point was not whether the officer could legally sniff the suspect bag himself. My point was that I fervently hope that refusal to consent to a search does not under current jurisprudence constitute affirmative evidence of wrongdoing. I’m unaware of current constitutional jurisprudence that holds that refusal to consent to a search is sufficient evidence of wrongdoing to justify a search and, in fact, I feel relatively confident that even Scalia would join Stevens in holding that a refusal to search does not, in and of itself, constitute probable cause. (Just don’t run from the police, particularly in a high crime area; that gives the cops reasonable suspicion.) > [@copperwindow](#): > > If I were to drink a beer out of a paper bag and a police officer asked me to pour it out, must I obey? No, as has been pointed out, you need not obey. But if the officer asks you to pour it out, the officer already has determined that you are in violation of the law. The officer also has determined that she is going to give you an out: if you pour out the beer (i.e., end the wrongful behavior), the officer will give you a pass. If you decline, the officer then likely will cite you, and may also conduct a field sobriety test because, really, if you’re not drunk, why wouldn’t you go along? All of that is reasonable: because the officer knows you have beer, and are drinking it in public, the officer knows you have violated the law. That’s probable cause. > [@copperwindow](#): > > what if I was drinking it right out of the bottle and they asked to confiscate it, can I cliam that beer isn’t in he bottle? Yes, you can claim that beer isn’t in the bottle. Here’s how that plays out: the officer sees a guy standing on a street corner, drinking something out of a paper bag. The officer, based on years of training and experience, surmises that you are drinking alcohol. The officer asks you for the bottle to confiscate it. You say, no, it’s not beer. The officer then says, what is it? Can I see it? You say no, you can’t see it, but it’s not beer. The officer then has some options: the officer likely has probable cause (because the smart officer has gotten close enough to observe signs of intoxication – breath, eyes, etc.) so the officer simply takes the bottle, confirms it’s beer, then arrests you (for, among other things, obstruction of justice for lying). Or the officer takes the bottle, confirms you were telling the truth, and returns it. If you really didn’t have beer, is the officer permitted to take your bottle and check? Maybe; I think the officer likely had probable cause, but if not, what’s your remedy? ---
**Author:** ![diggleblop](https://avatars.discourse-cdn.com/v4/letter/d/ac91a4/32.png) [@diggleblop](https://boards.straightdope.com/u/diggleblop)\ **Post date:** [July 9, 2006, 6:36pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/13 "2006-07-09T18:36:21Z")
I used to use apple juice bottles and fill them up with beer. But to answer your question, they have a right to reasonably pat you down and check to see what you’re drinking is alocohol or not, especially in public. The way they see it, if you’re doing something illegal, you don’t have a right to privacy. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 9, 2006, 7:55pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/14 "2006-07-09T19:55:26Z")
> [@diggleblop](#): > > But to answer your question, they have a right to reasonably pat you down and check to see what you’re drinking is alocohol or not, especially in public. “Pat you down” and “check what you’re drinking” are two very different things. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 9, 2006, 8:01pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/15 "2006-07-09T20:01:00Z")
Gah. Editing and hit reply. Dumbass me. As far as patting down goes, it can only be done if the officer reasonably believes that you constitute a threat (see Terry v Ohio). If you’re just standing there passively drinking out of a paper bag I would be hard-pressed to see how an officer can reasonably believe you constitute a threat. ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [July 9, 2006, 8:27pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/16 "2006-07-09T20:27:21Z")
> [@Otto](#): > > What is your cite that the police can call out a canine unit if you refuse a search? > > But my point was not whether the officer could legally sniff the suspect bag himself. My point was that I fervently hope that refusal to consent to a search does not under current jurisprudence constitute affirmative evidence of wrongdoing. Wasn’t the dog sniffing recently affirmed by SCOTUS in [Illinois vs. Caballes (pdf).](http://a257.g.akamaitech.net/7/257/2422/24jan20051130/www.supremecourtus.gov/opinions/04pdf/03-923.pdf) I realize that there was no refusal in this case, but if a dog can sniff without a refusal, I’d think they could sniff with one. Any other “evidence” on my part is anecdotal based upon the experience of friends. I do agree that refusal to submit to a search is not evidence of any sort. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [July 9, 2006, 8:52pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/17 "2006-07-09T20:52:10Z")
> [@KRM](#): > > I realize that there was no refusal in this case, but if a dog can sniff without a refusal, I’d think they could sniff with one. The critical distinction in \*[Caballes\*](http://www.law.cornell.edu/supct/html/03-923.ZS.html) was that the dog was brought out during a routine traffic stop. In other words, the defendant was already lawfully stopped; the drug dog sniffed during that stop, while the trooper was writing a ticket, so that the defendant was not “seized” for a longer period of time than a traffic stop would justify; and the dog alerted to a substance that is unlawful for anyone to possess. Under those facts, the court found that the drug sniff was lawful. That can be distinguished from the OP: no lawful stop _outside of the suspicion regarding the paper bag_; because of that, any stop necessarily takes too long; and alcohol is a legal subtance. Remember, you have the right to walk away from the police (but, again, don’t run). You have the right to refuse to respond to _most_ questions (I believe you must give your name and show ID). All of this changes, of course, if you’re under arrest. But if stopped by a police officer, you retain your First Amendment freedom of association until the officer has reasonable suspicion or probable cause to escalate the encounter. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 9, 2006, 11:33pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/18 "2006-07-09T23:33:01Z")
> [@Campion](#): > > I’m unaware of current constitutional jurisprudence that holds that refusal to consent to a search is sufficient evidence of wrongdoing to justify a search There is none. > [@O'Connor](#): > > We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=501&invol=429](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=501&invol=429) > [@](#): > > A refusal to consent generally cannot be considered as a factor in formulating reasonable suspicion or probable cause. The assertion of a constitutionally protected right, as here the right to refuse to consent, generally cannot be the basis for an arrest or, for that matter, an investigative detention. [http://policechiefmagazine.org/magazine/index.cfm?fuseaction=display&issue\_id=62006&category\_ID=3](http://policechiefmagazine.org/magazine/index.cfm?fuseaction=display&issue_id=62006&category_ID=3); [http://courts.state.ar.us/opinions/2001a/20010524/cr001399.html](http://courts.state.ar.us/opinions/2001a/20010524/cr001399.html) (“the State attempted to argue that Bennett’s refusal to consent to the search of her property somehow contributed to Investigator Ahlf’s determination that probable cause existed. However, the State conceded that it had no authority to support this contention.”); [http://72.14.203.104/search?q=cache:hKmqAmCrTdgJ:www.courts.state.va.us/opinions/opncavwp/0062011.doc+refusal+of+consent+to+search+probable+cause&hl=en&gl=us&ct=clnk&cd=10&client=firefox-a](http://72.14.203.104/search?q=cache:hKmqAmCrTdgJ:www.courts.state.va.us/opinions/opncavwp/0062011.doc+refusal+of+consent+to+search+probable+cause&hl=en&gl=us&ct=clnk&cd=10&client=firefox-a) ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [July 9, 2006, 11:50pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/19 "2006-07-09T23:50:28Z")
> [@PBear42](#): > > Legal: The requisite showing for a search is merely probable cause. This is a relatively low standard. An officer’s experience that people holding their beverage in a paper bag more-often-than-not (and it’s actually north of 90%) are drinking an alcoholic beverage will qualify. In other words, they don’t have to KNOW. They just have to have reasonable cause to suspect. What does this mean? Can a police officer see a group of black teenagers in a bad neighborhood hanging around with the officers “experience” that it means some wrong doing is occuring and search all of them becase “more-often-than-not” one of the black teenagers will have a warrent of drugs or illeagle firearms or whaever? Where is the line drawn? ---
**Author:** ![SCSimmons](https://avatars.discourse-cdn.com/v4/letter/s/e495f1/32.png) [@SCSimmons](https://boards.straightdope.com/u/SCSimmons)\ **Post date:** [July 10, 2006, 12:00am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/20 "2006-07-10T00:00:29Z")
> [@copperwindow](#): > > If I were to drink a beer out of a paper bag and a police officer asked me to pour it out, must I obey? This is really bugging me. How do you drink beer out of a paper bag? Wouldn’t it soak through & leak? 😃 [Next page](https://boards.straightdope.com/t/fourth-amendment/363714.md?page=2)