If I only have 1 or 2 ounces of alcohol left in the flask, I'm the passenger, the driver advises me we're being pulled over. So I completely finish drinking the contents of the flask without the officer seeing and put the flask in my pants pocket, and it's empty before the officer reaches the driver's window. If the officer decides to pat me down and finds the flask, would that be a open container violation?
Attached is an excerpt from the applicable Florida Statutes:
316.1936 Possession of open containers of alcoholic beverages in vehicles prohibited; penalties.--
(1) As used in this section, the term:
(a) "Open container" means any container of alcoholic beverage which is immediately capable of being consumed from, or the seal of which has been broken.
(2)(a) It is unlawful and punishable as provided in this section for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while operating a vehicle in the state or while a passenger in or on a vehicle being operated in the state.
(b) It is unlawful and punishable as provided in this section for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while seated in or on a motor vehicle that is parked or stopped within a road as defined in this section. Notwithstanding the prohibition contained in this section, passengers in vehicles designed, maintained, and used primarily for the transportation of persons for compensation and in motor homes are exempt.
(3) An open container shall be considered to be in the possession of the operator of a vehicle if the container is not in the possession of a passenger and is not located in a locked glove compartment, locked trunk, or other locked nonpassenger area of the vehicle.
(4) An open container shall be considered to be in the possession of a passenger of a vehicle if the container is in the physical control of the passenger.
Mr. Epifanio is correct, you should not be subject to a to a pat down or search as a passenger during a routine traffic stop. The police must have some reason to pat you down or search you unless you consent to a search.
Yes you possibly could. But the bigger question would be how would the officer know about anything in your pocket in the first place. Remember you always have the right to refuse consent to search and in fact you almost always should.
As stated by the other attorneys, it could technically be a violation of the open container law.
Also, and more importantly, as stated by the other attorneys... based on a simple traffic stop, the officer would have no reason to pat you down. There would be no reason for you to consent to a search of your person.
Best of luck.
