Open Container CD Idea Update

July 23, 2010 by Bradley Jardis
Filed under: Civil Disobedience, Update 

Regarding my last blog…  a commenter spurred an idea in my head.

If I was going to drink beer in public in violation of the law, I do it from a beer bottle that can be closed with a cap and keep the cap with me.  If the police approached me I’d simply put the cap back on the beer.

If the police asked me if the beer is mine…  I’d say that it is, because if I didn’t it is essentially abandoned property and they can pick it up and dump it out.

If someone, say you, claimed the property as your own, in order for the police to legally open (and use in court) the beer that you just closed, they now need a warrant.  Be sure to assert that you consent to no search of your property, as opening the cap of a container is a “search.”  This takes anywhere from 2-4 hours of the police and court time.  This will get old real fast for the police…  or it is already old, and they’re not going to do it.

As the police cannot lawfully seize someones closed beverage without the intent to get a warrant (and heaven knows they’re not going to want to invest hours and hours and thousands and thousands of dollars in applying for warrants) to investigate whether or not the beverage was used in violation of the law…  it seems to me that they are only left with the option to leave peaceful people drinking beverages alone.

PS: If they did take my closed beer without the intent to apply for a warrant to determine if it is alcohol (and a violation of the law) I’d probably will have a good civil suit against the police for stealing my stuff.  I’d be sure to follow up on this to make sure that they did apply for a warrant.  Once the statue of limitations has expired and the state can no longer initiate a prosecution against me for violating an open container ordinance, I’d be calling Attorney Lance Webber to see what type of civil action I could bring against the government for violating a slew of different statues and constitutional amendments.

(I am not an attorney, this is not legal advice…  Lance is though, and he is exactly who I’d go to if this happened to me.)

Comments

26 Comments on Open Container CD Idea Update

    2. xrazorwirex on Fri, 23rd Jul 2010 8:26 pm

    Wouldn’t it just be the same thing as if you were pulled over and the officer ’suspects’ you of wrong doing and/or sees something prohibited in your vehicle which apparently gives them ‘permission’ to bust your balls and raid your car?

    3. open_kontainer on Fri, 23rd Jul 2010 8:26 pm

    Are you sure they need a warrant and that opening the cap of a bottle would be a “search” under the 4th? I’m not so sure. If we’re talking about downtown Keene, where there’s now apparently a mass civil disobedience movement against the open container ordinance (priorities people, please…), then I can imagine a judge ruling that the kops have reasonable grounds to take the cap off and have a sniff, in the senario you’re suggesting. But maybe not, who knows.

    4. Bradley Jardis on Fri, 23rd Jul 2010 8:30 pm

    No.

    The officer may suspect that the container contains beer but that doesn’t prove anything in court.

    Absent obtaining a search warrant to open and test the contents within the bottle, all you’d need to do to defeat the prosecution is ask:

    Q: “Officer, isn’t it possible the container had a liquid substance that appeared to be beer?”

    The answer, absent a forensic test, would have to be “Yes.” This would be plenty of reasonable doubt to have the case tossed.

    Follow?

    5. Bradley Jardis on Fri, 23rd Jul 2010 8:34 pm

    Are you sure they need a warrant and that opening the cap of a bottle would be a “search” under the 4th?

    Absolutely the 4th Amendment to the US Constitution, but even more so under Part I, Article 19 of the NH Constitution.

    All searches are unreasonable unless done pursuant to a warrant or an exigent circumstance. A person has an expectation of privacy in a closed container… and government agents just can’t pry into closed containers because they feel like it.

    Getting the warrant from a judge would not be the issuue… there is plenty of probable cause. The issue is the vast amount of time it is going to take.

    6. Bradley Jardis on Fri, 23rd Jul 2010 8:36 pm

    … and if they commit to seizing the container, they’d better follow through.

    7. FreeManAnarchist on Fri, 23rd Jul 2010 9:18 pm

    I fail to understand how state agents can (legally or lawfully) do a pre-emptive search simply with the “intent of applying for a warrant”. First, having an intent and having a warrant are two different things. Second, asking for a warrant is no guarantee of getting one. Third, conducting a search with the intent of trying to get a warrant later, whether or not the cop gets one, is still conducting a warrantless search.

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    Also, I’m curious as to whether or not a cop in the situation described in the post could simply try to get the peaceful-drinker-of-an-unknown-beverage to submit to a breathalizer.

    8. Paul on Fri, 23rd Jul 2010 9:21 pm

    Love the idea. Question: What’s the difference between this case (requires a warrant), and the mere “reasonable cause” requirement for a car search? Are the requirements to open a a closed container more stringent than those for conducting an auto search — and is this because of special laws regarding autos?

    Feel free to add an “I’m not giving legal advice” caveat to your response. I fully realize you are not an attorney, just looking for your opinion as someone with police experience.

    9. Bradley Jardis on Fri, 23rd Jul 2010 9:32 pm

    I fail to understand how state agents can (legally or lawfully) do a pre-emptive search simply with the “intent of applying for a warrant”.

    Property can be seized and secured lawfully pending the application of a search warrant. Failing to seize the property, in this case a container of a liquid suspected to be alcohol, would most probably result in the destruction of evidence.

    First, having an intent and having a warrant are two different things. Second, asking for a warrant is no guarantee of getting one. Third, conducting a search with the intent of trying to get a warrant later, whether or not the cop gets one, is still conducting a warrantless search.

    State agents can’t just seize things because they believe they violate the law. The seizure must have a nexus to an investigation and a with a purpose to prosecute.

    In this situation asking for a warrant is a guarantee of getting one.

    Seizing a beer bottle, that is closed, which contains a liquid suspected of being alcohol is NOT a search. It is a seizure.

    10. Bradley Jardis on Fri, 23rd Jul 2010 9:37 pm

    Question: What’s the difference between this case (requires a warrant), and the mere “reasonable cause” requirement for a car search? Does opening a closed container have more stringent requirements than conducting an auto search — is this because of special laws regarding autos?

    The only thing that makes a vehicle easier to search is if a LE agency has an inventory search policy. In the 90s New Hampshire eliminated the ability of government agents to search a vehicle without a warrant due to the exigent circumstance that the mobility of a vehicle presents. Ie: it can drive away.

    Searching a vehicle and searching a closed container are essentially the same thing. You cannot do either without a warrant absent consent or exigent circumstances.

    I’d welcome some other legal minds reading here to correct me if they believe I’m wrong :)

    11. FreeManAnarchist on Fri, 23rd Jul 2010 10:13 pm

    Searches and seizures cannot be conducted without warrants, which cannot be issued without probable cause. It’s not “a warrant OR probable cause”. It’s a “warrant WITH probable cause.”
    Don’t get me wrong. I don’t expect government agents to actually obey the laws they use against us. Plus, I know that our system relies on case law (i.e. previous erroneous decisions) rather than simply reading the plain language of the constitution.
    “Failing to seize the property, in this case a container of a liquid suspected to be alcohol, would most probably result in the destruction of evidence.” So much for being presumed innocent! This is an assumption that there is evidence of illegal conduct. Cops and other government agents cannot assume private citizens are innocent because crime is necessary for them to keep their jobs.
    Asking for a warrant may be a guarrantee of getting one, but the search would still be warrantless! Would the state let me drive with simply “intent of getting a license” even if I knew that I would qualify for one? Of course not. I know. I know. Private citizens are held to higher standards than state agents. (I don’t say “the state”, because we are really dealing with two groups of PEOPLE: those who work for the government and those who don’t.) For example, cops continuosly break the traffic laws they continuously give us tickets for.
    Regarding the “guaranteed warrant”, that is no surprise as the issuer of the warrant, the judge, is simply another state worker. Both cops and judges rely on arrests and prosecutions to keep their jobs.

    12. Bradley Jardis on Fri, 23rd Jul 2010 10:18 pm

    Hey, I agree with you man that it is all really messed up. I’m just saying that this is how it works…. and with my practical understanding of how it works, here is how you toss a wrench in it so less peaceful people are harmed.

    A temporary seizure of property is permissible pending the application of a search warrant. The point I was trying to make was that the police couldn’t seize property lawfully unless it was to use it as evidence in a prosecution.

    13. FreeManAnarchist on Fri, 23rd Jul 2010 10:30 pm

    I understand that that is how it works and definitely appreciate your perspective based on your background. Thanks!!

    14. KBCraig on Fri, 23rd Jul 2010 10:36 pm

    Choose a “donor” bottle that has a screw-off cap, for ease in re-sealing, and also so you can appear to be opening a fresh one.

    15. wouter215 on Sat, 24th Jul 2010 7:42 am

    {Repost from http://freekeene.com/2010/07/23/open-container-civil-disobedience-idea/comment-page-1/#comment-89803}
    something that came up in my head wile sleeping.
    buy non-alcoholic beer and just remove the labels.. (put industrial tape over it if it’s a can)

    16. FreeManAnarchist on Sat, 24th Jul 2010 9:55 am

    Well, I believe the purpose of the demonstrations is to actually drink or appear to be drinking alcohol and get the police to throw in the towel in this fight and leave people alone. The cops do that with pot in Keene, right? Is that because there is too large of a group of people too deal with, or is possession of a small amount legal? My point is, if the cops are leaving you folks alone for using an illegal substance openly in NH, why are they bothering you for using a legal substance? Is it because simply because it is illegal to have an open container in public or jsut that you don’t have a large group as you do for 420 demonstrations?

    17. Bradley Jardis on Sat, 24th Jul 2010 10:05 am

    FreeMan,

    It is my understanding that they’re now cracking down…

    Hence why people who choose to engage in peaceful activities need to modify their approach.

    18. Chaz Munro on Sat, 24th Jul 2010 10:32 am

    As long as you *don’t inhale* tea leaves rolled up in cigarette papers, your lungs won’t suffer from it. It will smell enough like that lovely aroma of that sweet sweet Barney, that Mr. Cop will likely be fooled should he be insane enough to push it to that absurd level.

    It worked last year when I was quoted in a story by of all people, Melanie Plenda from the Manchester Union Leader stating to her that there was “fakey bakey” about the square. The same day that the story was printed they busted one of our own who had lit up some chocolate mint leaves that smelled nice enough to Officer Friendly, to convince the hapless gendarme that he had a “lawbreaker”.

    Oh boy, was he barking up the wrong stump. The officer decided to place a pair of matching silver bracelets on the kindly gentleman smoking this said bakey, not realizing the level of fakey rolled up in them there joints.

    It must have been incredibly embarrassing to the Keene, NH police. Our man was released from their foul honeycomb hideout before activists were able to walk from Central Square down to the police station. Lots of folks noticed that for the most part, the lawmen of Keene decided to leave people alone on the square after that.

    19. Judge Burkah on Sat, 24th Jul 2010 11:47 am

    PURR ARDOR OF THEE AUTHOR IT TEA SWEATER-VESTED IN ME BY MYSELF AND I, THIS COURT ORDERS: Effective immediately, all City of Keene Law Enforgement Persons shall construe them selves to be granted CARTE BLANCHE, and HAPLESS GENDARMERIE STATUS, to engage in any and all surchesm seazuresm ad nauseum, of any and all containers which any of you little Miss CREANT Troubadours & Trouble-makers think that you may po-zess. This order shall hold forth in PERPETUITY. This DIS-Honorable Court further orders that you be confined without benefit of bail, counsel, hearing or any other such NH Constitution, or Federal Constittution PRIVELEGE >oar< WRIGHT that you might once have thought about enjoying. THIS IS MY GODDAMN COURT!…

    20. Tom on Sat, 24th Jul 2010 12:32 pm

    I can see your point about the open bottle verse closed. Don’t you think they will just watch the group drink beer and then await you to drive off, cage you for DWI?

    Same as not being arrested for bare boobs, or painting bare boobs, but instead caged the girl for the drinking of beer with bare boobs… (quite nice one’s I might add)

    21. Bradley Jardis on Sat, 24th Jul 2010 12:38 pm

    I can see your point about the open botlee verse closed. Don’t you think they will just watch the group drink beer and then await you to drive off, cage you for DWI?

    Easily avoidable by simply not driving to Central Square.

    Same as not being arrested for bare boobs, or painting bare boobs, but instead caged the girl for the drinking of beer…

    I get what you’re saying. I disagree that the indecent exposure law was violating by painting a breast….. I think we’ll be seeing a not-guilty finding.

    22. Tom on Sat, 24th Jul 2010 3:22 pm

    Painting of the breast and indecent exposure wasn’t the charge Brad, it was drinking in public. (first picture in the blog)

    I assume that was why the officer carried the Bud can off with him in the car…

    23. Bradley Jardis on Sat, 24th Jul 2010 3:26 pm

    Oohhhh I thought that the police were quoted as saying that the behavior was lewd. I just assumed that the quote was justifying a charge.

    24. Sam A. Robrin on Sat, 24th Jul 2010 3:54 pm

    THE CIVIL DISOBEDIENCE PICNIC
    http://www.youtube.com/watch?v=5D-13V7Zqwk

    Come open-carry in Central Square:
    Beer bottles with screw-on tops
    Filled with water, or tea, or air–
    Let’s screw around with the cops!

    Come, every liberty activist!
    The laws are wrong, and we must resist!
    Today’s the civil disobedience pic-nic!

    Every liberty-lover knows
    The government wants us chained.
    Let’s demonstrate that oppression’s foes
    Can’t openly be contained!

    In day or dark, enjoying the park,
    Defy the snarling, quarrelsome narc.
    Today’s the civil disobedience pic-nic!

    Picnic time for porcupines!
    The active porcupines are showing how peaceful they can be.
    Roughed and cuffed and charged with fines,
    And they ignore them–Wow, what bravery!
    They don’t bow to prudes’ outrage;
    We’re nearing a free new age,
    And this is one of the signs.
    Before too long, the statist oppressors
    Will slink away for good,
    And we can thank courageous porcupines.

    There’s fun and frolic in Keene today.
    We’re merry as Santa’s elves,
    Till cops get bored and come out our way
    To start some trouble themselves.

    We won’t sit placidly on our cans
    Our lives are ours, and not The Man’s
    Today’s the civil disobedience pic-nic!

    25. thinkliberty on Sat, 24th Jul 2010 4:00 pm

    Wow awesome sam!

    26. Bradley Jardis on Sat, 24th Jul 2010 4:03 pm

    Yeah Sam, that is awesome indeed :)

    The cool thing about the bottle cap idea, is you can drink right in front of the cops… just be sure to put the cap back on after every sip. If the cops ask you what you’re drinking, do not answer. If you were to say “beer” that in and of itself could prove their case against you.

    When all they know is you’re drinking something that looks like beer out of a beer bottle… there is reasonable doubt that you could have put something else in it.

    You wouldn’t even have to testify. All you’d have to do is ask the police if it was POSSIBLE that you replaced the liquid within with something that looks like and even smells like liquor, which was not. Like I said before, unless they saw you break the ORIGINAL seal of the container… they would have to say that it WAS possible. That is unless they spent hours getting a search warrant and hours transporting the beer bottle to Concord for the Department of Safety forensic lab to test it. Only THEN could they definately say it WAS without-a-doubt alcohol.

    The judge would have no choice but to find you not-guilty unless they did all the leg work.

    BAM! Huge was of taxpayers dollars…. and a battle I’m willing to bet the police will not want to make.

    27. slayerboy on Sun, 25th Jul 2010 10:26 pm

    Not sure it it’s been mentioned, and forgive me if it has. But if I was up there in NH and this was going on, I’d bring a case of IBC Root Beer. http://www.ibcrootbeer.com/

    If you haven’t seen these, they look almost exactly like beer bottles without a label, and they have zero alcohol in them.

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