By: Kenneth Stecker
On September 10, 2009, in People of the City of Troy v. Chowdhury, Case No. 288696 (Mich. App., September 10, 2009) (For Publication), a number of young adults under 21 years of age were allegedly drinking alcoholic beverages at a house party in Troy. The officers proceeded to administer preliminary breath tests (PBTs) to the young adults. One of the officers administered a PBT to the defendant, which resulted in 0.025. The city ordinance at issue in the case reads in pertinent part, that “A peace officer who has reasonable cause to believe a person less than 21 years of age has consumed alcoholic beverages may require the person to submit to a preliminary chemical breath analysis.”
After having been charged with violating the ordinance, the defendant moved to suppress the results of the PBT. Defendant argued that the ordinance was unconstitutional because it allowed a police officer to perform a warrantless search, because warrantless searches are generally considered unreasonable unless an exception applies, and because no exception to the warrant requirement was applicable in his case.
In support of his position, the defendant cited two cases in which the U.S. District Court for the Eastern District of Michigan had ruled that a similarly worded ordinance and a similarly worded state statute were unconstitutional. See, Spencer v. Bay City, 292 F. Supp. 2d 932 (ED Mich, 2003); Platte v. Thomas Township, 504 F. Supp. 2d 227 (ED Mich., 2007).
The City of Troy argued that the federal case law relied on by the district court and circuit court failed to adequately address the “special needs” exception to the search requirement. The city contended that the “special needs” exception should be applied in this case because there is a compelling state interest in protecting young people from the dangers of alcohol abuse and in protecting the general public from the potential consequences of alcohol abuse by young persons.
The Court of Appeals ruled that “the decisions in Spencer and Platteare well-reasoned and consistent with existing Fourth Amendment law.” The court concluded that the Troy ordinance was unconstitutional on its face. As to the “special needs” issue the court agreed with the Spencer court that “there is nothing special in the need of law enforcement to detect evidence of ordinary criminal wrongdoing and that reasonableness generally requires the obtaining of a judicial warrant.” Therefore, the special needs exception to the search warrant requirement was not applicable.
What this means for future MIP investigations: Bottom line, police officers should not request a minor submit to a PBT unless they have previously secured a search warrant for the test or alternatively, have obtained a valid and documented consent from the minor to be tested.
Law enforcement officers will have to do an investigation using the tools they learned before technology:
- What is in their hands?
- How do their eyes look?
- How do they smell?
- How do they speak?
- How do they act?
- Are there beer bottles around the person?
- What evidence is there that the minor had been drinking?
It is these kinds of questions that an officer should ask. MIP charges are not dead and buried, just the use of the PBT when trying to compel a test. Of course, in the appropriate situation, an officer can always get a search warrant for the person’s blood. Additionally, another tool that some law enforcement officers have is the Passive Alcohol Sensor (P.A.S.) flashlight. This is a flashlight that has an alcohol sensor. The P.A.S. is used to check for the presence or absence of alcohol with or without a subject’s direct participation. When used without the subject’s direct participation it is known as passive sampling, as opposed to active testing where the subject blows directly into a mouthpiece. While it does not give a BAC reading, it provides an indication and may be very useful in these cases – now that there are issues with the PBT. Since it is taking a reading of the air around the person, there should be no issues under the 4th amendment.
It should be noted that MIP cases are important tools in indicating future alcoholism. Alcohol can damage a child’s brain, causing long term damage as the brain is not fully developed. There is the obvious concern, minors drink and then drive – and then all too often, they die. Being proactive in these cases can help the community in the long run and save lives right now. While we can no longer compel a PBT to be given to a minor, this does not mean that these cases shouldn’t be enforced and prosecuted.
Editor’s Note: For more information on these cases and statutes and PAAM training programs, contact Kenneth Stecker, Traffic Safety Resource Prosecutor, at (517) 334-6060 or e-mail atsteckerk@michigan.gov. Please consult your prosecutor before adopting practices suggested by reports in this article. The court decisions in this article are reported to help you keep up with trends in the law. Discuss your practices that relate to these statutes and cases with your commanding officers, police legal advisors, and the prosecuting attorney before changing your practices in reliance on a reported court decision or legislative change.
