Alcohol & Drugs: MIP, MIC, Intoxication Alcohol Beach Ban in San Diego

[markywos]

Hello,

Since the Alcohol Beach Ban in San Diego is still relatively new, I am having trouble finding answers to the legalities & technicalities of this ban.

Last night, I joined a small group for a bonfire in Ocean Beach. I sneaked in a bit of alcohol (in a random container) to mix with some soda. No one else brought alcohol. None of us (including me) were loud, belligerent, or violent. I was holding my cup when police arrived suddenly. I was able to empty the remaining contents of my cup before one of the officers asked me for it. I gave it to him & he proceeded to sniff the remaining contents of the cup. He let his partner sniff the cup & both concluded that there was alcohol in the cup. They also performed a search in the camp but found nothing. The only evidence they had was my empty red cup that they sniffed. Yet on my citation, it said "possession of opened container of alcohol (red cup)."

So I get that drinking on the beach is prohibited. But from the information I gathered from your website, do I really have the right to refuse consent to police searches which includes sniffing the contents in a cup? Is that even sufficient evidence for possession of alcohol?

So essentially I get away with drinking alcohol as long it's in a red cup and if they ask to sniff the contents of my drink, I just simply say no. Is this correct? Also, from my understanding, unless there is consent or a "probable cause," police cannot perform searches. Is this true?

But what is the definition of "probable cause" in this situation. I would imagine empty beer cans, loud crowd, belligerent behavior, etc. But what about just a group of individuals with "red cups" enjoying a bonfire? Is that a probable cause to perform a search, including sniffing cups? What about alcohol in the breath? Is that a probable cause? I apologize for all these questions but I really want to know what my rights are. Thank you for your time.

Sincerely,

Mark
San Diego

 

[army judge]

Hello,

Since the Alcohol Beach Ban in San Diego is still relatively new, I am having trouble finding answers to the legalities & technicalities of this ban.

Last night, I joined a small group for a bonfire in Ocean Beach. I sneaked in a bit of alcohol (in a random container) to mix with some soda. No one else brought alcohol. None of us (including me) were loud, belligerent, or violent. I was holding my cup when police arrived suddenly. I was able to empty the remaining contents of my cup before one of the officers asked me for it. I gave it to him & he proceeded to sniff the remaining contents of the cup. He let his partner sniff the cup & both concluded that there was alcohol in the cup. They also performed a search in the camp but found nothing. The only evidence they had was my empty red cup that they sniffed. Yet on my citation, it said "possession of opened container of alcohol (red cup)."

Okay, so far, so good.

So I get that drinking on the beach is prohibited. But from the information I gathered from your website, do I really have the right to refuse consent to police searches which includes sniffing the contents in a cup? Is that even sufficient evidence for possession of alcohol?

Yes, you can refuse. That won't necessarily end matters, however, as far as the police are concerned.
The police can detain you and request a search warrant.
You'd be held at the scene, until the police received approval for their search warrant.
That is, if the police deemed this a serious enough case.

Some police officers would search anyway, arrest, and let the issue be decided by the court.
The lesson here is, that the police do not always play by the rules.
There are many ways for the police to legally circumvent your refusal to allow their search.

Yet, the right to refuse a police search is sacrosanct in our constitution.
It has been bequeathed to us at the behest of our founders!

So essentially I get away with drinking alcohol as long it's in a red cup and if they ask to sniff the contents of my drink, I just simply say no. Is this correct? Also, from my understanding, unless there is consent or a "probable cause," police cannot perform searches. Is this true?

No, you don't "get away with anything".
The law requires the alcohol to be in a "red cup", I guess.
You have a constitutional right to be safe and secure in your person.
NO means NO.
The police kNOw this.
The police usually obey this.

Do not think that your NO will stop the police.
There are legal ways around your NO.
I've indicated some of them above.
Your NO will be helpful at trial, when the police turn up NOTHING from their ILLEGAL search.

The wise thing is NEVER to resist the police.
That opens up another nasty can of malodorous, dead worms for you!

But what is the definition of "probable cause" in this situation. I would imagine empty beer cans, loud crowd, belligerent behavior, etc. But what about just a group of individuals with "red cups" enjoying a bonfire? Is that a probable cause to perform a search, including sniffing cups? What about alcohol in the breath? Is that a probable cause? I apologize for all these questions but I really want to know what my rights are. Thank you for your time.

Sincerely,

Mark
San Diego

Most likely, the police didn't have "probable cause".

They were seeking "consent", your "consent".

With your "consent", probable cause is not required.

Yet, when people say NO, the police are somewhat like an arduous lover, albeit spurned lover.

In their "heated" state, they don't hear NO, or they don't want to hear it.

In their amorous excitement (and HEAT of the moment), they want what they want.

So, they just do it.

The street is not the place to resist the police.

The street is not the place to fight the police or argue with them.

Save that for the courtroom.

That is the purview of "Lady Justice", not Robert Peel.

 

[markywos]

Awesome information

Wow thanks. What should have I done differently then if there was any way around this? Oh and sorry about the confusion about the "red cups." They're just plastic cups people use when they go to the beach, usually to conceil alcohol if they're underaged. I'm not by the way, it's just prohibited to drink alcohol in San Diego beaches since 2008. Thank you again for your time

 

[mightymoose]

What to do differently? Don't give them the cup.

The problem I see here is that even if you do not consent, the officer could claim to have smelled the alcohol emanating from your person, which is all he needs to detain you and gain access to the cup without your permission.

Your best option would have been to physically separate yourself from the alcohol and the cup. If it had not been in your hand then they could not connect it to you. It was quick thinking to dump it, but you should have dropped the whole thing and stepped away.

Army is right- and I will admit that I regularly get people to consent to searches without even realizing that they have done so. Consent can be implied... if the officer reaches for your cup to take it and you do not pull it away or otherwise refuse his access to it, you are essentially consenting to his taking it. I am careful not to overstep my bounds, but there are certainly at least 101 ways around a refusal to allow a search under most circumstances. More often than not a suspect will unwittingly give consent without realizing it and will believe the police conducted an unlawful search... but they just aren't aware that we don't necessarily need a yes or a no from you.

 

[CdwJava]

As Mightymoose has explained, merely the odor of the alcohol could be sufficient probable cause to detain and search. Many people do not seem to realize how pungent the aroma of alcohol can be - particularly as it exits the pores. It is generally pretty easy to tell if someone has been drinking simply by the odor they emit.

The best way to avoid a similar contact and citation is <gasp> do not bring alcohol to the beach.