Judge Pierron wrote a dissent, which maybe prompted the initial grant of the petition for review. We also had one petition for review DIGged in a Fourth Amendment case. It's quite a let down to argue a case at the KSC and then not get a decision, but it happens every now and then. I'm not quite sure of the process that results in a DIG. In any case, this is a win for Mark's client.
Here, the officers detained all the party guests located in the basement, including those who were legally drinking, for up to an hour while they investigated each of them one by one. Such a blanket detention was not reasonable under the Fourth Amendment. At the time the officers detained Flesher, they did not have any specific and articulable facts that Flesher had committed or was about to commit a crime.
We are not unsympathetic to the logistical nightmare that can confront officers during an investigation such as this. Parties, semi-supervised and otherwise, populated by hoards of both young adults and teenagers, where alcohol is served and is in abundance, are not only a nuisance to the neighbors but a threat to public safety and the safety of the participants. However, we can envision a number of possible scenarios in which the authorities could identify underage drinkers and other lawbreakers without the use of a dragnet that sweeps up and detains all in its path. The Fourth Amendment requires such an exercise of restraint on the part of the State. The State's procedure here, for which it seeks our imprimatur, would justify, for example, the police entering a wedding reception and confining everyone from the minister and Aunt Ethel to the children running uncontrolled about the dance floor until the police could question and inspect individually each of the celebrants to determine if the report they received of underage drinking was true. If a wholesale roundup and detention of partygoers is justified to investigate underage drinking, could not the police in any of our college towns, upon a report of possible underage drinking, simply lock the doors to any given drinking establishment and detain all the patrons for hours as they process them one by one out the front door? To posit a more sedate setting, are we willing to extend our Saturday evening dinner at a local bistro by an extra hour or so because someone has reported to the local authorities that an underage patron was seen with a glass of wine? The requirement of individualized suspicion protects the citizenry from such overbearing intrusions by the State.
Saturday, March 17, 2007
State's PR DIGged
The KSC dismissed as improvidently granted a state's petition for review preserving Mark Schoenhofer's win in State v. Flesher, No. 94,175 (Kan. App. May 19, 2006), where the COA reversed a Sedgwick County consumption of alcohol by a minor conviction. The case had to do with a police bust of a beer party: