For years Kansas appellate courts have held that if a police officer smells the odor of burnt marijuana coming from inside of a person’s car, they therefore are allowed to pull everybody out and search the car – just based on the allegation of the officer detecting the smell. The odor of marijuana, an illegal substance, gives the police “probable cause” to believe that there is contraband in the vehicle. Last Friday, the Kansas Court of Appeals extended this principle to the odor of alcohol. The case is called State v. Stevenson.
Officers stopped the driver, Stevenson, for not using his turn signal for a long enough distance before he made a turn. Two officers approached the car, one on the passenger’s side and one on the driver’s side. The officers smelled the odor of alcohol coming from the car. They pulled the driver out and determined that the odor was not coming from the driver. In fact, they determined that the driver had not been drinking, at all. But, because they smelled the odor of alcohol, they searched the car and ended up finding drugs, as well as an open bottle of wine. With a flick of the wrist, the Court of Appeals shreds the Fourth Amendment right to be free from unreasonable searches and seizures holding that the odor of alcohol – a LEGAL substance – gives officers probable cause that there is an open container in the car.
I don’t know whether to laugh or cry. Again, alcohol is completely legal. What is more, alcohol HAS NO ODOR. So the premise of the entire opinion is completely fallacious. At best, the officers are smelling the odor of an “alcoholic beverage”, that is, smelling the other ingredients of a drink. They are not smelling alcohol. I would be willing to bet a large sum of money that you could spill a non-alcoholic beer like O’Douls in one car and a Budweiser in another, and no one could tell the difference.
What is more, while transporting an open container is illegal, spilling an alcoholic beverage in your vehicle is not. The open container law prohibits TRANSPORTING an open container, i.e., driving with an open drink in the car. The officers have absolutely no way of knowing whether the “odor” that they are detecting is coming from an open container of alcohol in the car or something that was spilled when the car was motionless (which is not illegal). The alleged odor does not suggest that any crime is currently being committed.
This really is a joke. Henceforth, officers will be smelling the “odor of alcohol” on a regular basis and using it as means to search vehicles that the law would otherwise prevent them from searching. The observation of an odor is completely subjective. There is no way to disprove whether someone smelled something. The officer can’t be cross-examined on it much. He can say he smelled it, and you can’t prove he didn’t. What is really sad is that the intrusion that this case ratifies, the power that it expands for the government, the freedom that it chips away, has absolutely no rational relationship to the safety of us citizens. Why is it illegal to have open containers of alcohol in the vehicle (in Kansas – not Missouri, btw)? It is illegal to have open beers, bottles, etc. in the car because we don’t want the driver to be tempted to drink alcohol while driving the car. Right? Am I missing something? It is not illegal to transport open containers in your trunk or behind the last upright seat in a car (again, how do the police know whether the odor is coming from a legal place or illegal place within a car?). So, we want to limit the access of drivers to alcohol while they are driving. Makes some sense. But, wait, in the Stevenson case, the officers determined that the driver HAD NOT BEEN DRINKING and the odor did not come from the driver, at all! The degree of potential harm or danger was so minimal, if it existed at all, and the lack of exigency so obvious, that it should never have outweighed the protection afforded to the individual by the Fourth Amendment.
So, if you work in a restaurant or bar and spill alcohol on an apron or jacket, don’t drive home with it in your car unless you have some extra time on your hands to sit on the curb while your car gets tossed by law enforcement to make sure that there isn’t an open can or something dangerous like that in there.
P.S.: Take a look at the facts of this case if you want to see a text-book example of what government power is looking like these days. The driver was stopped not because he failed to signal his turn, but because he didn’t do it for long enough. Kansas law says you have to signal a turn 100 feet before you make it. The officers didn’t measure the distance. They eyeballed it and said the signal didn’t come on soon enough. MAybe it did, maybe it didn’t – again, it is likely a matter of subjective opinion. Big deal anyway, not signalling long enough. That is a de minimis infraction if there ever was one. My guess was this was late at night, the only other traffic on the road was the vehicle with the police officers in it and there was absolutely no danger or harm in the failure to signal for long enough. Nobody was dangerously surprised by the turn with the short signal. Then, not one but two officers approach the driver to pursue this turn signal infraction. This is very intimidating, particularly when you are alone. Can you imagine a young female alone in the dark in this situation? One officer goes to one side of the car, the other to the other side. You can almost hear them saying, “We’ve got you surrounded!”. What is this about on a turn signal stop? The officers then smell alcohol. So, they get the driver out and determine that he has not been drinking. So, write him a ticket for no turn signal, or better yet, give him a warning and politely remind him that the rule is to signal 100 feet before a turn? No, without asking, without any real proof that there is an illegal open container about, without any fear that the driver may pose some danger to the other motorists out there, the officers start searching the car, getting into the center console of the car, as well as the glove compartment, pockets and everywhere else, no doubt. But, wait, they had found a large bottle of wine that was half empty and had been leaking. The mystery smell had been identified. So, why did they then need to get into the small compartments of the car? What suspicion was there for that? Absolutely none. But, hey, once they were in there, why not have a little dig around just to see what else might turn up?. All of this happened in America, land of the “free”, in Kansas, and was given the seal of approval by our courts. This is all pretty normal these days. And it is pretty sad to watch the freedoms that our citizens have fought and died for for over 200 hundred years wither and die by inches before our very eyes.