Havin' A Brew on Your Stoop May Cost Ya.

very true easy simple & quick solution !

brooklynlager wrote: i have heard of people getting tickets when using the red plastic cup method. still you are less likely to get harassed. still, i think drinking a beer on your stoop should be perfectly legal, sucks cops would even bother people about this.

I agree wholehardedly. But, my personal solution is roof access.

interesting approach. so to not answer and not lie, what do you say?

"none of your business"?

"i take the fifth"?

"you'll have to ask my attorney"?

Probable cause is sufficient to write a summons which can be fulfilled by simply smelling the beverage, or even by simply saying he smelled beer on your breath.

Wow things must be pretty slow around here! Didn't we exhaust this topic several times in the last month?

King without a crown wrote: Wow things must be pretty slow around here! Didn't we exhaust this topic several times in the last month?

Yah, I guess the Brooklyn Paper didn't get the memo.

daver wrote: Last time I checked, the Supreme Court has upheld that refusal of consent to search constitutes probable cause.

The supreme court has never upheld this. If refusal to consent to a search were probable cause for a search, it would be impossible to either refuse or consent to a search. I would be shocked if you could point to even a lower court case that has upheld this.

King without a crown wrote: Wow things must be pretty slow around here! Didn't we exhaust this topic several times in the last month?

so if i respectfully said "sorry, i'm not going to answer that question," what would a cop say or do?

Mougar wrote: Beyond your name, and in some states address, police can't compel you to say anything. That said, you don't need to admit you are drinking for them to issue a summons.

Once the cop has decided to question you, he has committed to doing something, anything. If you don't confess he can decide either to back off or be a prick. Better to have a summons that has no evidence of wrong doing at least.

sterling2000 wrote: [quote=Mamacita]Brooklyn Paper never gets the memo, that's the problem. Crappy journalism.

To wit, here's the letter I just sent off to the editors at The Brooklyn Paper...


re: "This Bust's For You" by Sarah Portlock

To The Editors of The Brooklyn Paper:

Your front page story "This Bust's For You" by Sarah Portlock in your September 4, 2008 edition is another example of the poor trend in modern lazy "journalism."

Ms. Portlock's story leads with a broad outline of events that occured to me and were posted by my wife on the Yahoo Park Slope Parents message board. While Ms. Portlock attempted to make contact with me through the proper channels of the moderators of the message board, by the time your reporter and I connected the story had gone to print.

Factual errors that would have been easily identified if Ms. Portlock had spoken to me or done some additional reporting include:

- "Enjoying an ice cold one on your warm stoop could send you to the cooler." False. This is a ticketable citation and cannot send you to jail, as the lead implies with the word "cooler."

- "That’s what a Park Sloper learned on Aug. 27, when a uniformed officer ticketed him for drinking a beer — on his own front steps — at 11 pm." Two false statements. I live in Prospect Heights, not Park Slope. The ticket states a time nearly at midnight, a full hour past the time your paper reports.

- "The man in the latest incident said he will pay the $25 fine, but in a post on the Park Slope Parents Web site, he said he is incensed at the officer’s interpretation of the city’s open-container law." Three inaccuracies here. I have never stated I will be paying the fine. If anything, I've said I would probably pay the fine. I've actually decided to fight the ticket since the incident originally happened. In addition, I never "said" anything on the Park Slope Parents message board -- the story was posted by my wife as I related it to her. I have also at no time been "incensed" by the incident.

- "The interpretation of that law is left to individual officers, said a source at the 78th Precinct..." It was good to reach out to the NYPD for comment, but contacting the precinct where the offense actually occured (in this case the 77th) would have been the more direct thing to do.

It is unfortunate your paper and staff have such low standards (particularly on a front page, above the fold story). I certainly don't expect Pultitzer-level writing out of a free neighborhood paper, but some fact-checking and basic reporting skills out of Journalism 101 would be nice to see.

Regards,

XXXX XXXXX

Haha! Good job man! =D> :thumright:

If you are really interested in the subject, you might consider just reading some of the case law surrounding it:

Terry v. Ohio, 392 U.S. 1 (1968)
Florida v. Royer, 460 U.S. 491 (1983)
Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004)

Money quote from Terry:

"There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked, but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation."

King without a crown wrote: [quote=Smokin' Joe]well said. lifting a story posted anonymously on the internet doesn't constitute reporting, even if she hadn't mangled the facts.

and no disrespect to the legal aficionados on the board, but my question above about what a cop would do if you refused to answer was intended for kwac, who might know.

Refusing to answer an Officer, as to whether or not you're drinking an alcoholic beverage, probably has little or no bearing on the Officer to writting a summons. Smelling the beverage is enough to reasonbly believe the person is/has been consuming alcohol. Usually if your honest you're less likely to get a summons, not answering or denial only serves to piss off Cops. If not answering an Officers question became an affirmative defense, no one would ever talk to Police. Also you can be arrested for having an open container of alcohol in public. Normally a summons is issued for this violation, however, a summons is issued in lieu of arrest. If the offender doesn't possess valid ID or has a warrant, a summons should not be issued.

I disagree. (The offending beverage is in a neutral vessel by the way) If you don't "confess" to the crime what evidence is there that proves beyond a reasonable doubt that you were drinking alcohol. You are not required to answer the PO and you would not be required to answer the admin. judge. If I was defending, I would ask how does the PO know the difference between alcoholic and non alcoholic beer? Is he a chemist or a brewmeister? True the PO might issue a summons but it would be tossed and he would be reprimanded for writing it. Furthermore you would not be arrested, it is not an arrestable crime either by actual law or by practice. The only law you have or might have broken is the open container law. It has nothing to do with how big an asshole you might be.

modsquad wrote: I disagree.

you may be totally right legally, in which case it would probably get tossed out in court, if you made those arguments and had a judge who was sympathetic to them, however kwac's scenario is likely to be what happens on the stoop. cops aren't judges or lawyers, they have their rules (and make up others as needed) and generally aren't interested in discussing the finer points of law as they're busting someone. i'm not defending them or saying it's right, just that as a practical matter your response is unlikely to get the cops to leave you alone.

Urinating and the red light are observable offenses. "I did observe the accursed with pecker in hand relieving himself".

If placing an alcoholic beverage in a cup became a viable option to those wishing to break the open container law, no one would ever get summonsed for this offense

Not true, when asked what they are drinking, most people implicate themselves thinking that their honesty will keep them out of trouble. Having said that there is a risk as Carnivore says of "complicating" the situation.

I am curious however, under what circumstances would someone be arrested for an offense that under normal conditions a desk appearance summons is issued? The PO writes a summons alleging the suspect was drinking and on top of that he has arrested him? I can't imagine what "supporting deposition" would make this a "slam dunk".

King without a crown wrote: I think i answered your question already," If the offender doesn't possess valid ID or has a warrant, a summons should not be issued". In this case an Arrest may be effected.

Officers do not need a confession to write an open container summons. Poilice are trained in recognizing the odor of alcohol, and therefore a cup doesnt have to have a label stating the type of imported lager the gentrifier had previously poured into the red plastic cup purchased at Costco.

Nitpicking a bit, but alcohol itself has no odor, so there's no way police could be trained to detect it. Perhaps you meant that police are trained to recognize the odors of common alcohol-containing beverages.

Since regular beer and non-alcoholic beer smell identical, and the law only prohibits open containers containing more than 0.5% alcohol, if there were no label on the beer, and the suspect claimed it was non-alcoholic beer, how could the police support the ticket?

It still doesn't seem worth the hassle of being brought downtown, especially after the cop added some bullshit "resisting arrest" charge. If anyone were determined to push the issue, I'd make sure you have a closed circuit camera on your stoop to provide video evidence that will support what actually happened if the officer decides to get creative with the facts surrounding the incident.