If an officer smells alcohol on breath is that probable cause to search, and for anything they want?

Question

If an officer smells alcohol on breath, is it probable cause to search?

Defendant asleep in car, Front seat passenger asleep also. Driver pulled off in a gas station off highway after being too tired to drive home to another state. Keys in lap of driver, acknowledged by officer. Alcohol suspected to be on drivers breath. Field test conducted, no breathilizer or charges of intoxication incur. Owner of vehicle does not agree to search. Owner detained in patrol unit out of view of car searched. Evidence was not visible to officers. Dogs bark finding evidence of marijuana and "empty" beer cans in plastic bag. Evidence discovered in back seat. Defendant claims no knowledge of evidence. Charges for open container, and possession of less than 50 g of marijuana.

Answer 1

States vary, but yes, smelling alcohol is probable cause and the search can then be for "immediate safety" issues. In your scenario, there is also reason to suspect criminal activity so it will probably be a justified search.

I knew of a person who carried a small bottle of gasoline in the car and whne he was pulled over, dumped the bottle of gas...it's very strong and the police can smell that, it also explains any possible watery eye BS that the cops will surely say they see regardless.

Answer 2

Excellent questions! THIS is what they should be teaching us in elementary and high school. If a rozzer says he smelled alcohol on a minor's breath, he is obliged to make inquiries at the scene and probably detain until parents can be notified. They can't search you without reasonable probable cause but it's fairly easy to dream up reasonable probable cause with a minor - presence of alcohol, consorting with known criminals, etc. If you're not doing anything untoward and you are stopped, rozzer/s may overwhelm you physically and make a search but nothing they find in an improper search can be used against you in court. If you're stopped and questioned, you are required to identify yourself, show ID if you have it but more than that you say nothing w/o atty. Good for you. Get it right early. They have NO authority to make 'deals' with you about lesser charges or anything else - that's the prosecution's look-out - but they will use everything in their power to get you to incriminate yourself, and they're often pretty good.

Answer 3

So, what's your problem?

The officer had probable cause when you were sleeping in a gas station, alcohol on your breath and empty beer cans in the back seat.

You must trust me on this...."probable cause" covers a lot of ground. If the police want to search your car - they will search it one way or the other.

You were charged correctly.

Use your head....confine your drinking to the bars or at home and keep your stash out of the car.

Answer 4

Unless alcohol is sold at the gas station, and probably even then, it can be presumed that it was driven there after the alcohol was consumed. If the dogs indicated drugs before the search, that in itself is probable cause for a search. Once there is probable cause to search, anything they find is admissible even is it is not what they were looking for.

Answer 5

You made a good start on the first discussion you should have with an attorney. Flush out your story to be more complete (not bashing cops, but complete & objective) then look for a good criminal attorney, if possible in the local area.

good luck

Answer 6

Yes, under federal constitutional law it is probable cause.

Answer 7

Sorry buddy the search was legal.

Answer 8

yes thats enough reason to search your car, ive had cops make up reasons and excuses to search my car, theres nothing u can do about it there all mostly bastards

Answer 9

yup, busted