The Kansas Court of Appeals handed down an unpublished opinion recently that addresses a problem I have seen very frequently in Johnson County, Kansas Minor in Possession (MIP) cases. A typical MIP case starts with the police officers hearing about or stumbling upon a party at which underage drinking is suspected. They will look through the windows or contact people who are outside of the home where the party is located and see if they can determine that young people are, in fact, drinking. Then, either by consent of the homeowner/partythrower, or without it, they enter the home. This is where it gets interesting from a constitutional perspective.
The police will often round up all of the people at the party and sequester them in the basement or some other room of the house. They announce that no one is leaving until they have had a chance to ID everyone and see if they are MIP or not. This may take an hour or more. A police officer will guard the door so no one can leave without going through their unofficial “checklane”, even if they are innocent and have not been drinking, or are not underage.
The Court of Appeals, in State v. Flesher, held that this violates the Fourth Amendment right to be free from unreasonable search and seizure. This is an unpublished opinion so it does not carry as much weight as a published opinion. Courts are not required to follow it. However, it is fairly persuasive and should give prosecutors, defense attorneys and judges a pretty good idea of what the appellate courts will do if the issue is presented to them.
Some language from the case:
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. That did not occur until approximately 22-29 minutes later.
This case ought to put an end to this prevalent practice by Johnson County police agencies. I would not bet on it though. Click here for more information about Kansas MIP law.