Looks Like Beer, But Is It Really Beer?

“Who are you going to believe: me, or your own eyes?” – Eddie Murphy
The police in Orlando have a tough job. Actually, the police in all of the United States have a tough job, and our founding fathers wanted it that way. As you know, police work is only easy in a police state. Thus, problems of proof are always an issue on offenses that don’t involve blood. If there’s blood at a crime scene, the CSI units are scrubbing the toilet bowl with laser tooth brushes looking for answers. No blood, and not one drop of physical evidence is collected.

So, how far can a police department get with the only proof is officer testimony–rather than ignored physical evidence? Now, not every case provides an opportunity to collect physical evidence, but today, we’re going to examine a case of possession of alcohol involving a minor. Usually, this charge is coupled with a disorderly conduct charge, as young folks cannot handle their liquor (old folks too, for that matter). On small crimes like this, the police never take the alcohol into evidence, nor do the police test the alcohol to make sure it is not a non-alcoholic beverage. The question becomes, what proof need law enforcement present to prove that a substance was, in fact, alcohol? Typically, the police simply pull the old Eddie Murphy routine, asking the court to “believe” what they “say”, rather than look to any sort of physical evidence of the crime. Must we take the word of law enforcement, when they fail to collect physical evidence to back up their observations?

The burden on the government to prove a possession of alcohol by a minor case is minimal, and several courts have held that the government need not present physical evidence of the possession, they need only present witness testimony that the appearance and smell of the illegal contraband is consistent with alcohol. See A.A. v. State, 461 So.2d 165, 166 (Fla. 3d DCA 1984). Other cases have held that a minor’s admission that the liquid is alcohol will suffice (this presents some corpus delecti issues, but that’s for another day).

In the case of P.N. v. State, a minor was eventually convicted of possession of alcohol by a minor, when he was caught holding a beer bottle. 976 So.2d 90 (Fla. 3rd DCA 2008). To make matters worse, when the officer took the beer bottle from P.N., it only contained sand and salt water. The officer made the arrest anyway–your taxpayer dollars hard at work. The prosecutors continued to spend money on this case, all the way up to the Third District Court of Appeals, who then had to explain to all these money wasting government officials that the law requires the possession of “alcohol”. Possessing a bottle that once contained alcohol–but no longer contains it–cannot constitute a violation of the law. Sure, it’s stupid for a teenager to be flaunting a beer bottle, I get that. But, to waste tons of taxpayer money prosecuting this case all the way up to the district court of appeals makes me cringe.

This discussion of possession of alcohol by a minor brings me full circle, to the recent case of R.A.W. v. State, 92 So.3d 312 (Fla. 1st DCA 2012). The 15 year old minor in this case had a liquid spill out of a beer can, onto the sandbar, as the police approached. The liquid was dark in color, and foamed up like beer would foam up–according to officer testimony. However, the officer never smelled the liquid (as required by A.A. v. State, above), and the officer never preserved any physical evidence. So, rather than having the old analysis of a liquid that smells like beer being enough to convict–the officer in R.A.W. was able to convict based upon the “foaming action” of the liquid, combined with the color of the liquid and the fact that it was coming out of a beer can. The court noted the lack of evidence gathering here, noting that the officer “did not take possession of the can, leaving it with the group sitting on the sandbar for them to discard. R.A.W. was not subject to any observation or testing for alcohol consumption, and showed no signs of having imbided; indeed, she denied having alcohol. In sort, no steps were taken–other than observing a dark spilled liquid foaming–to determine that the can actually contained beer or other alcoholic beverage.” Id. The judge goes on to write that “no Florida court has held that mere observation of a liquid or its foam without also smelling it is sufficient to establish it is alcoholic”, but he upholds the conviction because “[t]here is merit to the common sense notion, as expressed by the officer, however, that a liquid flowing from a spilled beer can is probably beer, particularly when it looks and appears to foam like beer.” Id at 314.

So there you have it The unique thing about this case is not the facts, per se. The unique thing about this is the judge’s written opinion. Judge Scott Makar of the First District Court of Appeals decided to agree with the majority in upholding R.A.W.’s conviction for possession of alcohol by a minor, but he did so by labeling his opinion “concurring dubitante”. Because I had no idea what this meant, Black’s law dictionary states that an opinion “concurring dubitante,” is an opinion in which “the judge doubted a legal point but was unwilling to state that it was wrong.”

Now, I don’t know much about Judge Makar, other than the fact that he was appointed to the bench by Rick Scott in 2012. And, I don’t agree with the result reached in R.A.W., but I really like this opinion– it is a fine, well reasoned opinion (have I ever said this about an opinion I disagreed with? No.). The notion that this judge would issue a “concurring dubitante” opinion shows that he is really thinking about the facts and issues involved, whereas other judges are just pulling out their “per curiam” stamps. Judge Makar took the government’s standard of proof seriously, even to the point of examining the how liquids foam up, footnoting a chemistry article and Wikipedia article regarding the “importance, formation, and development of improved beer foams”. Judge Makar’s decision even acknowledged that “[k]ids do goofy things like putting soda in a beer bottle to act cool”.

Ok, possession of alcohol is not the most serious crime on planet Earth. But, our Constitution is one of the best documents ever produced by human beings in terms of how a government should treat its citizens. Look at Makar’s opinion. He takes our Constitution, and its burden’s on the government, seriously–even on a petty charge like this one. That’s encouraging. Because, if our courts cannot be trusted to make the right decisions on the small stuff–what should we expect on the big cases?