Archive for Sunday, September 22, 1991


September 22, 1991


Lawrence police officers have arrested or cited more than 40 underaged drinkers during bar checks between Sept. 7 and Friday, a substantial increase over the seven arrests reported in September 1990.

And the increase has a local attorney worried that police may be violating the law because they don't understand the complexity of conducting a bar check.

The attorney, Don Strole, challenged a case in 1989 in which his client was arrested for underage drinking after she refused to show police identification while she was in a local drinking establishment.

Strole says he isn't trying to encourage anyone under 21 to enter a bar and have a drink.

"I'm not telling people they should be in that situation in the first place," he said. However, "I don't think I'm doing anything wrong by telling people what their constitutional rights are.''

THE ADDITION of 26 officers to the police department in the past year has helped police more strongly enforce underage drinking laws, police say, adding that bar checks would continue to be conducted on a regular basis for a greater part of fall.

Citations can be for a number of underaged drinking violations, including minor in possession of alcohol, minor consuming alcohol, minor in a club after hours, and using false identification.

Strole says he's concerned that the increased number of arrests means police aren't conducting bar checks properly.

Strole challenged the police department over bar checks in 1989, when he took an underaged drinking case to the Kansas Court of Appeals.

Strole represented Abbie Bernstein, then 19, who was cited for a single count of possessing alcohol as a minor after she was arrested in March 1989 at the Free State Brewing Co. Inc., 636 Mass.

ACCORDING to court records, officers approached Bernstein and a friend in the brewery and asked whether the women had identification. When they told officers they had no identification, the police took their beers.

Police then asked them to step outside the brewery and questioned them about whether they were carrying false identification.

Strole contended then and still believes that Bernstein's Fourth Amendment rights were violated during the arrest because the officers had no "reasonable suspicion" she had committed a crime. The Fourth Amendment prohibits unnecessary searches and seizures by the state.

When Bernstein told officers she wasn't carrying any identification, the officers frisked her. Strole argued that the search also was illegal because the police did not have probable cause to conduct a search.

STROLE SAID two important questions were raised in the case: Can an officer approach a person on the basis of youthful appearance? And is that person compelled to answer an officer's questioning?

The Kansas Court of Appeals upheld Douglas County District Judge Jean Shepherd's ruling on the Bernstein case, which found that a person has the right to decline an officer's request for identification.

However, the appellate court reversed Shepherd's ruling that youthful appearance was not sufficient evidence to suspect that a minor was drinking illegally.

LAWRENCE POLICE Lt. Mark Brothers, who heads the crime analysis unit, said that in the Bernstein case, the officers who testified only noted the woman's youthful appearance and noted no other signs that police take into consideration before questioning a possible underaged drinker.

But if a police officer approaches a person whom they think might be a minor drinking illegally, he said, it's because of a number of reasons.

Officers are trained to look for a combination of factors, including a nervous appearance, which may mean anything from running out of the bar to moving a drink in front of someone who is 21 years or older.

"Things that are to me, a 20-year observer . . . red flag signals," he said.

If the person seems nervous, officers may ask the person for identification.

Strole said anyone can decline to show identification, because the I.D. may be self-incriminating evidence another act prohibited by the Constitution.

BUT BROTHERS said it is not advisable for someone to simply walk away from an officer who is questioning him or her. Potentially, that puts an officer in a "combative" situation, Brothers said.

And Brothers said that the officer has the right to "ascertain who you are, where you're from and what you're doing there.''

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