Fighting For Important Causes In State And Federal Courts
By Peter Goldberger and Anna Durbin
The forum held in Marshall Auditorium on Friday evening, September 4, provided an opportunity for students to air some of their questions about legal issues arising in the wake of the previous night’s State Police “alcohol awareness” raid on an indoor-outdoor party at Lloyd Hall. As career criminal defense lawyers and longtime friends of Haverford College (one of us an alum from the Class of 1971 and the other an experienced local attorney for many arrested students over the last decade), we were invited to participate in the forum as legal resources. This op-ed shares some of what we had to say. The reader must understand, however, that all of the information in this column is necessarily very general and superficial; it is no substitute for individual, confidential legal counseling, tailored to the facts and circumstances of a particular person’s situation.
To begin at the beginning, police do not violate the United States or Pennsylvania Constitution when they enter the areas of a campus which are open to the general public. Likewise, police do not violate any law when they wear plain clothes and enter a place without identifying themselves as police, provided an authorized person welcomes them in. (Nor do police violate any constitutional or statutory limits if they peruse the internet and read public Facebook pages!) And if police, being in a place they are allowed to be, reasonably suspect that “criminal activity,” including underage drinking and the furnishing of alcohol to minors, is “afoot” (to quote the Supreme Court), they have authority under the Fourth Amendment to “detain” the particular suspected individual briefly at the scene—short of a full custodial arrest—to investigate that “suspicion.” If detaining a large number of individuals, the police may seek to ensure their own safety by controlling where people can be, including requiring them to sit down and stay put. Failure to comply could easily lead to arrest, although whether the charges would be pursued later by the district attorney is a different question. A person who has not been told s/he is being detained, on the other hand, has an absolute right to simply walk away—but preferably not run—from the scene.
How should students behave in this situation? You already know the answer, right? A respectful and nonviolent attitude is almost always the best policy. The use of the word “Sir” or “Ma’am” usually goes a long way; it expresses respect for the (temporary) authority of the officer who is doing his or her job, as that officer understands it. The time to dispute whether the police are following the law and Constitution—if it seems to you they are not—is later, after you have talked to a lawyer, who can argue legal points for you before a judge. You will never change the mind of a police officer in the field by trying to explain why you are right and s/he is wrong about the law governing police-citizen interactions. If the judge later rules that the police acted unlawfully, then evidence they secured as a result of that violation ordinarily cannot be used in court.
Do you have to answer questions? No, because the Fifth Amendment guarantees your right not to be compelled to “be a witness against” yourself—that is, to provide any evidence that may tend to incriminate you, which in an underage drinking situation clearly includes your age, class year, or date of birth. What about that Miranda Rule you’ve heard of? According to the Supreme Court, if you are “in custody” — that is, not free to leave (whether under arrest or not) — and a police officer asks you questions without warning you first that you have a right to remain silent, that you may have a lawyer with you before answering any questions, and that anything you say may be used against you as evidence, then anything you do say should not be useable against you in court. Failure to give the warning, however, does not require the case to be dropped. If the police don’t foresee using your on-the-scene statements as evidence later, they have no particular incentive to give the warnings. And if you “volunteer” information (that is, speak without “interrogation”) or you are not “in custody,” then anything you say may be used against you, even if the police officer did not read you the Miranda rights.
Are you required to give any information to the police? Police can ask you to identify yourself, but in a non-driving situation you do not even have to produce identification (nor do you have any legal obligation to carry ID) and in fact Pennsylvania has no law requiring that you even answer a request for identification. But if you refuse, in a situation where there is already reasonable suspicion—as a judge might conclude there was, if you are a young-looking person seen carrying a beer cup at a wide-open party advertised as being primarily about drinking alcohol—you can expect to be held until your identity and age are ascertained and verified.
All things considered, you should probably agree to identify yourself but then say that you will not answer any other questions until after you have talked to a lawyer—our suggestion is that you tell the officer that this is the instruction you have from your parents. The police have been trained to use psychological techniques to get you to answer questions, perhaps by telling you it will go easier for you or that s/he’ll have to take you to the police station, or by accusing you of trying to be “too smart.” Remember that police are not required to tell you the truth, and that they are not on your side and are not actually trying to give you good advice, no matter how they make it seem. You will probably be best off repeating that you want to talk to a lawyer first, please. But don’t raise your voice or display a hostile attitude.
Police in Pennsylvania do not have authority to require anyone who has not been driving to take a breathalyzer test. However, when they ask for consent, they do not have to tell you this, or to make it clear you can refuse.
What if the police want to come into your dorm room? Unlike public areas of the campus, dorms are not generally open to anyone who cares to enter and so are not freely open to the police. Most likely, they will first seek “voluntary consent,” which can validly be given by any authorized person (a resident or administrator). Again, the law does not require the police to mention that consent can be refused without adverse consequences. They can only demand entry (even by force) only if (1) they have a search warrant or (2) there is probable cause to believe that a crime is then being committed and truly “exigent circumstances” make it impossible to seek and wait for a judicial warrant.
What are “exigent circumstances”? We cannot give a complete list, but hearing someone screaming that they are being hurt, or sounds indicating the imminent destruction of evidence are typical examples. But the mere fact that a loud party is going on would not give police authority to come into a dorm room or suite without being granted consent to enter. Usually it is best if a police officer asks to search your room (or your car, if stopped on the highway) to say, firmly and politely, “No, thank you.”
Individuals cited for underage drinking are not arrested, and do not acquire a criminal record, but must answer the charges in court unless they work out a “diversion” arrangement with the police and/or district attorney for a promise of good behavior, with community service. The decision whether to fight a citation or seek a diversion—which can result in the arrest being expunged sooner, but carries some burdensome costs—can best be made after a private consultation with a lawyer who is familiar with Pennsylvania laws and with the practices of the local district judges, police and prosecutors.