When it comes to underage drinkers, most of us don't have a problem with the cops busting in and breaking up a rowdy, teenage angst-ridden binge-fest. But when it comes to adults partying through all hours of the night, our reaction begins to get a little hazier, sometimes in direct proportion to the amount of beer we've just guzzled. And usually by that time most of us are thinking more about tomorrow's hangover than about whether or not the cops have just violated our civil rights.
But one person who is wondering about just that is Attorney Charles Knoblauch, who is filing a lawsuit against the city claiming that police officers are entering homes illegally when called out to investigate parties. Knoblauch—who says that the primary culprit is the APD Party Patrol, a weekend-run overtime police force with a mission to stop underage drinking—believes that cops are overstepping the law, and trespassing on some of our basic civil rights. He says that oftentimes police officers enter homes without a warrant, without consent, and without any of the other circumstances that would allow them to enter. Doing this, he says, is a violation of the Fourth Amendment, which prohibits the government from performing “unreasonable searches and seizures.”
“It's sort of a slippery slope—you allow them to come in for one particular instance, then you allow them to come in for the next thing, and the next thing, and then, by usage, there is no right of privacy left,” says Knoblauch, who adds that it is not just minors who are being violated, but that adult parties are also being illegally entered and searched. The goal of the lawsuit is not to accrue monetary damages, but rather, to require the Party Patrol to change their practices.
But not everyone agrees with Knoblauch. Sgt. Mike Geier, a supervisor of the Party Patrol, says that entering homes without consent is a rare exception that is not abused. He says that when officers do force entry it is only done when necessary, and only when there are enough exigent circumstances (a term that will be explored later) to legally allow them to do so. He also adds that adult parties are not the focus of the Party Patrol, and that usually there is no need to enter a home if minors aren't inside. “It's not the intent of the program to bring down the walls of justice,” says Geier.
Lt. Joseph Byers, another Party Patrol supervisor, also has some strong feelings on the matter. He says that he senses a general feeling of paranoia from the public. “People think that it's an excuse to kick down doors, but that's not why we do it,” he says, adding that the focus of the program is simply to save kids' lives, and to use all resources available to do so.
Still, there are some Albuquerque residents who do agree with Knoblauch in questioning the local government's authority, and who say that they have plenty of reason to do so.
A Tale of Two Parties
Katie Smith, who asked that her real name be withheld, began the September evening in a summer dress and sandals, and didn't expect to end it in handcuffs. She was throwing a 30th birthday party for one of her friends and had invited a few bands to play at her house, who were tucked away in the basement. She was enjoying the music along with about 50 or so of her over-21 cohorts when around midnight a few unexpected guests arrived.
The Party Patrol had received a call from a neighbor, who complained about the noise, and came to check it out. But when they reached the front door and asked to enter, Smith said they couldn't and that she'd turn down the music. According to Smith, a couple members of the Party Patrol team, which was formed by five or six officers, entered anyway. Smith says that Officer Yvonne Martinez was particularly aggressive and ordered everyone to leave. When Smith said that she wanted to make sure everyone could drive, Martinez said that the officers would do it. Yet, from what Smith saw, the officers never did check to see if guests were sober enough to drive, and instead just sent them on their way.
The situation escalated, and Smith, along with several other people at the party, asked the officers for their names and badge numbers, but was repeatedly refused. They also asked about the complaint and the reason why the officers had entered the house, but were ignored. At this point, Martinez arrested Smith, claiming that she was enticing a riot, and put the 100-pound female in handcuffs. Smith's sister, similarly sized, was also threatened when she asked Martinez why Smith had been arrested, at which point she was answered with a burning can of mace. Smith's boyfriend was also put into handcuffs when he asked what was going on, the reason being cited as “impeding an investigation”—a charge that was later discovered to be “bogus,” according to Smith, who is a plaintiff in Knoblauch's case.
After repeated attempts I was unable to contact Martinez. Officer Ernest Serda, who also served on the Party Patrol that night, says that although he would like to, he can't discuss what happened because the case hasn't been settled yet.
Captain Sonny Leeper, who is unfamiliar with the incident but who helped form the Party Patrol in the fall of 2001, says that such a situation is extremely uncommon, and that probable cause must be met if officers enter a house. He adds that Martinez is no longer working the Party Patrol, and that any officer who fails to meet certain standards is pulled from the program.
“In all the years we've been doing it now, I really believe that we've had less than 10 complaints,” says Leeper. “And the reason is that the officers that work this program can't just sign up. We hand select the officers and they have to go through both legal training and ethics and moral training on how to deal with kids. If we find an officer that we think is derogatory or condescending, they're out of the program, we don't allow it.”
But David Kappy says that he had an experience with officers that was beyond derogatory and condescending, and bordered on downright frightening. Kappy, who is a witness in Knoblauch's case, was hanging out with a few of his buddies at a friend's house when the cops came knocking. A couple hours earlier there had been a small party, with about 15 people who were, again, over the age of 21. Since then, the party had broken up, and Kappy and three others were all that remained.
The owner of the home was asleep in her bedroom, and so when Kappy heard knocks at the door, he originally didn't answer, since it wasn't his house and the knocks, as he described them, sounded ominous. Eventually, he did answer the door, and when he did, he says that the two officers standing outside (he is unsure whether they were Party Patrol or not) barged in immediately, without first asking for consent. The officers asked if they had drugs (they didn't) and began to perform a basic search of the house with flashlights, going so far as to open the closed door to the bedroom where the owner of the apartment was sleeping. According to Kappy, after the officers were at a loss to discover anything illegal, they muttered, “Let's go, she's just drunk,” and left abruptly. Kappy noted that the owner wasn't intoxicated, and that most people that evening were drinking lightly.
“It was inappropriate and was too aggressive for the situation,” says Kappy, who adds that the incident made him feel violated. “I think when you have people who are adults, and you treat them like adults, you can deal with the situation diplomatically instead of using intimidation and force.”
Edward Burch, a law student working on Knoblauch's case, says that much of the distress caused at both parties could have been avoided if a standard protocol for dealing with parties was put into place. He says that the Albuquerque Police Department's definition of what allows them to enter homes is much too broad to be legal.
Exigent Circumstances and Community Caretakers
There are two terms in the legal world that lead to a lot of controversy: “exigent circumstances” and “community caretaker.” The first is a term that no one seems quite able to define, try as they might. Generally, it refers to circumstances that would allow the police to enter a home without a warrant, as does its companion term. What those circumstances are, however, is another matter. The Party Patrol website (www.abqpartypatrol.com) defines “exigent circumstances” as “those emergency situations where someone’s life may be in jeopardy,” and uses the example of officers being able to see someone inside a home that is “injured and unresponsive.” In this case, the officers would then be allowed to enter the home to help the person in distress.
Complications arise, however, with what is actually practiced, says Burch, who adds that the listed definition is closer to describing the “community caretaker” term than “exigent circumstances.” According to Burch, what usually qualifies as “exigent circumstances” are the threat of officer safety or the real possibility of the destruction of evidence, both of which, he says, are not typical of average parties. He says that regardless of which definition you follow, the police make a habit of overstepping the law, such as in the cases of Smith and Kappy. In both, there wasn't anyone passed out in plain view, there was no threat to officer safety, and there wasn't any indication that the destruction of any evidence was imminent—yet, in both instances, officers reportedly entered without consent.
The Party Patrol website defines “community caretaker” in a similar way to how it defines “exigent circumstances.” The site states that at underage drinking parties young people are oftentimes found passed out and in need of medical assistance, and that if there is any indication that this could be occurring at a party, officers then have a right to do a limited “sweep” of the home to ensure that no one is in a situation that requires medical aid. Burch says that the way they phrase this on their site makes it seem like as long as they know a party's happening, they can enter, which isn't the case. He says that “community caretaker” really refers to officers being able to go in and help people that might be in danger—but that it only allows them to complete that task, not to then search the house for other things. “[Otherwise] the exception swallows the rule, and basically most of the time they don't have to have a warrant if that's the case. I think that logic is just crazy,” he says.
But Sgt. Geier says that things are not that simple. He says that because they've recorded a high enough rate of kids at parties that do need medical help due to over-drinking, that if officers get to a party and see more empty alcohol containers than should safely be there for the amount of kids that are present, for example, they'll do a sweep of the home to make sure everyone's safe. Once inside, the “plain view” doctrine is in effect, which means that if officers see intoxicated kids, they can then take appropriate action. He says that officers work on a case-by-case basis, and that “exigent circumstances” can't be easily defined. “It's not black and white,” he says. But Geier adds that officers' work is scrutinized, and that they need to be able to articulate why they take the action they do. “We're just trying to make sure everyone's safe,” he adds.
Geier does admit that sometimes, despite good intentions, things can get out of hand. “Do the officers make mistakes? I'm sure they do. I'm sure sometimes the officers will get somebody who'll just say the wrong thing to them, and the officers will take it from step A to step Z right away because that person pressed their buttons. We're human, too. I'm not going to say that in every case we're a 100 percent right.”
In fact, officers admit that at times there have been problems with the program. Officer Harold Medina, who works on the Party Patrol, says that there have been bumps in the road, but that he believes at this point they've mostly been ironed out. City Councilor Brad Winter, who, along with Captain Leeper, helped to form the Party Patrol, says that he thinks that all of the initial problems with the program have been addressed, and that overall the program has been incredibly successful.
Officer Serda also believes that things are going well for the program, and says that he's noticed a decrease in the number of traffic accidents on the nights that the Party Patrol is out, and believes that it's because they've prevented kids from turning into drunk drivers. He still wishes, however, that it wasn't necessary to stop so many. “[The program] would be a complete success if we never had to write another citation,” he says.
As to when it's acceptable for officers to enter homes without a warrant, Capt. Leeper emphasizes that it's never an easy issue. “We're damned if we do, damned if we don't; it's a fine line that officers walk,” he says, explaining that when officers don't enter a party and something tragic happens to a kid when he leaves, officers are then held responsible.
Still, Katie Smith argues that the situation is not as complex as officers make it seem, “You allow certain freedoms to be tossed aside, and you give a little and you give a little and you give a little and after awhile you're not going to have anything left. If you let them blatantly violate the Constitution and take away your rights, you're not going to have very much left at the end of the day. And if you don't put a stop to it now, then it's almost impossible to do it later.”
