An open box containing unopened cans isn't an open container

Rick Kittel and KU Defender Project intern Sean Foley won in State v. Driskell, No. 105,126 (Kan. App. May 18, 2012)(unpublished), obtaining reversal of a Reno County possession conviction.  The main issue on appeal is whether having an open box of unopened beer cans constitutes the offense of transporting an open container, which in turn would have supported a detention and search that led to the drugs and the eventual conviction.  The COA held that it did not:

Furthermore, K.S.A. 2008 Supp. 8-1599(b)(1) provides that alcohol may be transported in “the original unopened package or container, the seal of which has not been broken and from which the original cap, cork or other means of closure has not been removed.” But a cardboard box carrying cans of beer does not have a seal to be broken or a cap to remove. Rather, the liquid is sealed inside the can. Accordingly, even if we did not apply the rule of lenity, it is apparent that a box of unopened cans of beer does not fall within the statutory description of a package or container of alcohol. Thus, we conclude that it is not a violation of the statute to transport a box containing unopened cans or bottles of beer.

Because the officers could not arrest Mr. Driskell for transporting an open container, the search was illegal and the COA reversed the conviction stemming from the search incident to arrest.

[Update: the state did not file a PR and the mandate issued on June 21, 2012.]