Liquor police's Fling tactics raise legal questions

ANALYSIS | Officers need 'individualized suspicion' to detain partygoers

· March 23, 2014, 7:17 pm   ·  Updated March 24, 2014, 5:38 pm

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As the state liquor enforcement police prepares to return to campus for Spring Fling, analysis of the agency’s underage drinking crackdown calls into question the constitutionality of the tactics it has used.

The Bureau of Liquor Control Enforcement cited 31 students at several off-campus parties during Fling last year, as well as 23 at the Blarney Stone in December. BLCE District Commander Dan Steele said in an email that the state police force “anticipates assisting” Penn this year during Fling weekend.

The legal question stems from a 2006 Pennsylvania Supreme Court case, Commonwealth v. Mistler, which held that a 2003 BLCE raid of a fraternity party in West Chester, Pa., violated the Fourth Amendment of the United States Constitution by detaining individuals to be breathalyzed and cited without “individualized suspicion.” Police detained the entire group of partygoers without reason to believe that each individual was in violation of the law.

In the case, those who were over 21 were told to leave, and those remaining were questioned and observed by police, leading to 56 citations for underage drinking.

When describing the procedure for raiding a party such as those on campus last April, Steele said that officers separate attendees who are over and under 21 after asking for identification from every partygoer. Underage attendees who are found to be in violation of liquor laws — which Steele said can be determined by a breathalyzer test or other means such as observed possession of alcohol or the “odor of alcoholic beverage on the breath” — are then issued a citation.

For Law School Senior Fellow David Rudovsky, a practicing attorney, such a detention would be unconstitutional under the Mistler decision.

“Mistler says you can’t make a generalized notion that if we see 50 kids in the fraternity house, we’ll hold every one of them until they produce ID,” Rudovsky said. “That’s not individualized suspicion.”

In response, Steele argued that BLCE officers may hold individuals who they believe are violating liquor laws as part of an “investigatory detention,” which requires less evidence for legality than a formal detention. Then, Steele said, officers can gather additional information and decide whether to issue a citation or make an arrest.

Law School professor Kermit Roosevelt said stopping a party to ID everyone could constitute such a legal investigatory stop, and officers could then identify individuals to be reasonably searched or detained further.

Rudovsky, however, said that the Mistler decision rejected the “investigatory detention” justification for holding all partygoers for further investigation. Stopping a full room of individuals to check each attendee’s ID would amount to a constitutional detention, he said, and would therefore require individualized suspicion.

Steele acknowledged that cited individuals may plead not guilty and argue their case in court, and that the judge’s decision may be framed by existing case law on the issue of underage drinking.

“I am sure there are numerous case laws on underage drinking arrests in Pennsylvania,” he said. “I do not have them off hand. Many defendants plead not guilty arguing many different facts, [and] ultimately the judge will make the decision in those matters.”

After last year’s citations, The Daily Pennsylvanian spoke with a cited student who said that he was not “observed possessing and/or consuming” alcohol, as his citation indicated.

Both Roosevelt and Rudovsky said that such a claim would be challenging to support in court, since a cited individual would have to argue that the officer made a false statement on the citation.

“It would be hard to show that that observation didn’t take place,” Roosevelt said. Rudovsky added that the claim could turn into a credibility claim against a police officer.

In a February interview, Vice President for Public Safety Maureen Rush said that the Division of Public Safety and the BLCE are not looking for small parties, but large ones that are overflowing into the street or generating noise complaints from neighbors.

“The reality is no one is trying to see how many kids can be cited,” Rush said. “That’s not our mission. Our mission is to keep everybody safe. And the reality is some of these off-campus houses were posing a safety hazard to many students.”

The state police has indicated a desire to step up enforcement on university campuses over the past year.

“[The BLCE] really has a blanket authority throughout Pennsylvania to do anything they want,” Rush said about the BLCE’s decision to target Penn.

Some students have expressed concern that the increased enforcement could have unintended consequences, especially on Fling weekend.

“People who were going to drink are going to drink,” said a student organizer, who wished to remain anonymous. “They can’t attack underage drinking as a whole. That’s totally unrealistic. The only thing it does is make people who are underage binge drink.”

The student also attributed the decrease in hospitalizations and other incidents at last year’s Fling — which DPS has pointed to as a benefit of the presence of the BLCE — to disappointment with the concert and to Friday’s subpar weather.

Though Steele declined to comment on specific plans for this year’s Fling — other than indicating that the state police anticipates working with Penn Police — he said that the BLCE has “an open invitation for enforcement,” and that it may bring uniformed and undercover officers, as it did last year. Since last year’s Fling, the BLCE has been on campus in a more limited capacity, most recently citing seven individuals outside the Sigma Alpha Epsilon chapter house on Jan. 23.

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