Driver's Beer Can't Show Open Container Offense

     WASHINGTON (CN) - Police officers who saw an open beer can in a car cup holder lacked probable cause to initiate a search, a federal judge ruled.
     The government had sought reconsideration after U.S. District Judge Richard Roberts previously determined that police improperly conducted a warrantless search of Eric Hemingway's car - violating the Fourth Amendment - and that the subsequent arrest of Hemingway and seizure of physical evidence from his vehicle were fruits of that illegal search.
     Roberts refused to credit claims that police had probable cause to arrest Hemingway for possession of an open container of alcohol before the search.
     "Justice may require consideration where a court 'patently misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or where a controlling or significant change in the law has occurred,'" Roberts wrote, citing Arias v. DynCorp and Negley v. FBI. "Here, the government does not allege that the court misunderstood the parties' arguments or considered an issue not presented by the parties, or that there was an intervening change in controlling law. At best, the government appears to be making a second attempt to cite relevant law and facts in support of an argument that has already been rejected on the merits."
     Roberts added: "An open container in a car is not contraband unless it contains alcohol. Here, the officer could not see in the container, he did not testify that the driver or passenger said that it contained alcohol, and his testimony about smelling alcohol before the arrest was discredited. Suspicion ... is not enough to establish probable cause."
     The judge noted that the presence of a beer can in a car is significant only if it contained alcohol, something the arresting officer had no way of knowing at the time.
     "The defendant appeared nervous, although lights and sirens at three o'clock in the morning could make a saint nervous without shedding any light at all on whether there was alcohol in the can," Roberts wrote. "The length of the police interaction with the defendant and the condition of the can did nothing to overcome the fact that the officer could not see if any alcohol was in the can. Nor did any mere suspicion by the officer that the defendant or his passenger had been drinking from the can in the car earlier give the officer authority to make a warrantless arrest for a misdemeanor that was not committed in his presence."