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'Miranda' Warnings Required From Police Officer Who Sniffed Breath of Dozens of Young Partygoers

We already determined last week that it is a Fourth Amendment "search" for a police officer to touch a key on a laptop or move the mouse pad in order to reveal the contents of the screen, so let's move on to this week's criminal procedure question:

If a police officer enters a party filled with 40 to 50 young people, demands that they line up, and proceeds to sniff the breath of each person to determine if they have consumed alcohol, is this a custodial interrogation requiring Miranda warnings? Yes, according to the Superior Court of New Jersey, Appellate Division.

Last week in State v. Koch (via New Jersey Law Journal), the court considered the case of Zeb Koch, an 18-year-old who was convicted in the lower court of underage consumption of alcohol. Koch attended a party that drew complaints from a neighbor that young people attending the party were smoking marijuana and urinating on his lawn. A policeman responded to the call in a marked squad car, which caused about 20 young people to run off into the woods behind the home. The policeman did not pursue the kids who ran off, but did detain the 40 to 50 young people who remained at the home. It is "undisputed" that alcoholic beverages were being consumed in and around the home.

The policeman then

lined them up; told them they were not free to leave; and proceeded to sniff the breath of each to determine if they had consumed alcohol. It is undisputed that no Miranda warnings were given. Specifically, no one was advised that they had the right to refuse to submit to being sniffed, or to remain silent.

Just before the policeman sniffed Koch, Koch said spontaneously, "I only had one." The policeman also says that he remembered that Koch's breath smelled of alcohol. Ultimately, Koch was charged with underage consumption of alcohol based on his admission that he'd had one beer and the officer's testimony that Koch's breath smelled of alcohol.

The appeals court agreed with Koch's argument that he and the others at the party were detained, questioned, and not free to leave the "to-be-smelled" line created by the policeman. The court stated that the officer's actions were an "implied question to Koch and others to indicate whether they had consumed alcoholic beverages." As such, the court held, Koch's "admission" must be suppressed because no Miranda warning was given.

In addition, in a separate holding that could deter police in the future from acting like K-9 sniffer dogs, the court found that the officer's testimony that he sniffed alcohol on Koch's breath was insufficient as a matter of law to sustain a conviction:

There were many young people at this party. Alcohol was being consumed by many of them. Therefore, the smell of alcohol in the area of the party was a given. The sniff test without excluding other sources, was not sufficient to establish that Koch was drinking. 

The court therefore reversed Koch's conviction.

Posted by Bruce Carton on October 3, 2011 at 04:29 PM | Permalink | Comments (2)


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