Spencer v. City of Bay City

• Decision Date: 18 November 2003
• Docket Number: No. 02-10280-BC.,02-10280-BC.
• Citation: 292 F.Supp.2d 932
• Parties: Jamie SPENCER, Plaintiff, v. CITY OF BAY CITY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

292 F.Supp.2d 932

Jamie SPENCER, Plaintiff, v. CITY OF BAY CITY, Defendant.

No. 02-10280-BC.

United States District Court, E.D. Michigan, Northern Division.

November 18, 2003.

COPYRIGHT MATERIAL OMITTED

Kary L. Moss, Michael J. Steinberg, David A. Moran, Detroit, MI, William T. Street, Saginaw, MI, for plaintiff.

Ethan Vinson, Cummings, McClorey, Livonia, MI, for defendant.

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND DENYING DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

LAWSON, District Judge.

This case involves a challenge to the constitutionality of a Bay City, Michigan ordinance that allows police officers, upon reasonable suspicion, to demand that a person who has not reached 21 years of age take a breath test, without first having obtained a search warrant. This matter is before the Court on the plaintiff's motion for partial summary judgment and on the defendant's motion to dismiss or for summary judgment. The parties agree that a preliminary breath test constitutes a "search" within the meaning of the Fourth Amendment. The Court finds that the purpose of the authorization contained in the ordinance is to gather evidence of a criminal violation, and thus concludes that the ordinance's blanket authorization of warrantless searches is repugnant to the Fourth Amendment to the Constitution. The defendant's motion to dismiss or for summary judgment, therefore, will be denied, and the plaintiff's motion for partial summary judgment will be granted.

I.

The local ordinance that is the focus of this litigation is Section 10-57 of the Bay City Code of Ordinances (B.C.Ord. § 10-57). That ordinance makes unlawful the attempt or actual purchase, possession, and consumption of alcoholic beverages by persons under 21 years of age. The ordinance declares such conduct a misdemeanor and establishes a schedule of fines and other sanctions for first and subsequent convictions. B.C. Ord. § 10-57(a). The ordinance also punishes any person who furnishes alcohol to a minor, and directs the Michigan Secretary of State to suspend the driver's license of violators. Id. § 10-57(b), (d). There is also a provision requiring the notification of parents in certain circumstances, id. § 10-57(f), and there are exceptions set forth as well. Id. § 10-57(g), (i),(j), (k). The subsection called into question in this case is Subsection (e), which states:

A peace officer who has reasonable cause to believe a person less than 21 years of age has consumed alcoholic liquor may require the person to submit to a preliminary chemical breath test analysis. A peace officer may arrest a person based in whole or in part upon the results of a preliminary chemical breath analysis. The results of a preliminary chemical breath analysis or other acceptable blood alcohol tests are admissible in a criminal prosecution to determine whether the minor has consumed or possessed alcoholic liquor. A person less than 21 years of age who refuses to submit to a preliminary chemical breath test analysis as required in this subsection is responsible for a state civil infraction and may be ordered to pay a civil fine of not more than $100.00.

B.C. Ord. § 10-57(e), Pl.'s Mot. S. J., Ex. A. This subsection of the ordinance is patterned after a similarly-worded Michigan statute, see Mich. Comp. Laws § 436.1703(5), which the plaintiff does not challenge here. The parties agree that a Bay City police officer demanded that the plaintiff submit to a breath test on the authority of the local ordinance.

At about 6:30 p.m. on August 20, 2001, the plaintiff, Jamie Spencer, who was 19 years old at the time, left work and drove to the home of her fiancé, Van Spencer. The two discussed going to a location in Bay City to "roller blade," and invited Ashley Ball, Van Spencer's cousin, and Timothy Kolka, the plaintiff's friend, to join them. Spencer Dep. at 10, Pl.'s Mot. S. J., Ex. D. The plaintiff, Van Spencer, and Ball drove to Bay City in Van Spencer's car and parked at the Veterans Memorial Park in downtown Bay City, arriving at approximately 8:30 p.m. Ibid. At the park they met Kolka and two of Kolka's friends, Eric Tweddle and Matt McDaniel. Id. at 16. All six individuals left the park and went roller blading around the city. At approximately 11:30 p.m., they returned to the park. Id. at 16-17.

Shortly thereafter, Bay City police officers Rod Schanck and Brian Schroer were dispatched to the park after the police received a report of a disturbance and a possible fight near the boat launch area. Schroer Dep. at 11, Def.'s Mot. S. J., Ex. 2. Officer Schanck arrived at the park at approximately 12:03 a.m. on August 21, 2001. Def.'s Mot. S. J., Ex. 1 (Police Report). Upon entering the park, he observed an individual on roller blades, later identified as Eric Tweddle, standing next to two vehicles near the park entrance. Schanck said that Tweddle appeared to be a juvenile. He also noticed two other vehicles parked near some tennis courts in the park and four individuals, later identified as the plaintiff, Van Spencer, Ball, and Kolka, standing next to those vehicles.

Schanck drove around the park and, after not finding any evidence of a disturbance, returned to the entrance way where Tweddle was still standing. The two vehicles that were near the entrance way had departed by this time. Schanck testified that he approached Tweddle to inform him that the park closed at 10:00 p.m., and as he did, he "could smell a lot of intoxicants" coming from Tweddle. Schanck asked Tweddle if he had been drinking. Schanck Dep. at 20, Def.'s Mot. S. J., Ex. 3. Tweddle denied that he had been drinking; Schanck then read him his preliminary breath test (PBT) rights from a laminated card that Bay City police officers customarily carry with them. Upon being read his rights, Tweddle agreed to take a breath test.

Schanck explained that standard PBT protocol requires that an officer engage in a 15-minute "observation period" before taking a breath sample, during which the officer monitors the individual and checks the individual's mouth to make sure nothing is inside that would block the test or damage the machine. Id. at 20-21. Consequently, Schanck placed Tweddle in the back of his patrol car to wait before he administered the PBT.

While Tweddle was sitting in the back of the patrol car, Officer Schroer arrived at the park. With Schroer next to him, Schanck administered the PBT to Tweddle. The test revealed that Tweddle had a .09% blood-alcohol concentration level. Id. at 20. Schanck wrote Tweddle a citation for violating B.C. Ord. § 10-57(a). The officers then asked Tweddle if he knew the four individuals that were standing next to the cars parked by the tennis courts. Tweddle said that he had arrived at the park with those individuals. Id. at 22. The officers left Tweddle in the patrol car and walked over to the group to talk to them. Schanck testified as follows:

Q. You certainly did not believe that you had reason to believe that everybody standing in that group had consumed alcohol because Mr. Tweddle had flunked a PBT, do you?

A. Well, normally if you have a group of kids that are together and if one of them's been drinking, it's reasonable to consider that all of them may have been.

Q. You considered it a reasonable inference?

A. Yes, yes.

Q. So part of your purpose in approaching the group was simply because Eric Tweddle has said he had come with these people you intended to go over and see if there was any other evidence of alcohol among that group?

A. That was part of our reason for going over there.

Q. What other part or parts did you have in approaching this group?

A. Well, we—they were in the park after the curfew. I wanted to speak to them about that. And we also wanted to inquire about if they saw the fight, if there was a fight if they were involved or anything to do with the fight.

Id. at 23-24.

The group, consisting of the plaintiff, Van Spencer, Ball, and Kolka, told the officers that they had no knowledge of a fight. Officer Schroer testified at this deposition that "in speaking with the group I recall observing or smelling an odor of intoxicants coming from one of the individuals or possibly the group, it was tough to tell being as it was they were lined up in front of us and we were speaking to them." Schroer Dep. at 15, Def.'s Mot. S. J., Ex. 2. Schroer also testified that there was no alcohol visible. Id. at 19. The officers then asked the group for identification and Officer Schroer ran their names through the Law Enforcement Information Network (LEIN) system to check for "wants and warrants." Id. at 16-17. The system reported that Timothy Kolka had an outstanding warrant for failure to appear in court. Id. at 17. The other individuals did not have any outstanding warrants.

Meanwhile, Officer Schanck read the plaintiff, Ball, and Kolka their PBT rights. Van Spencer was not read these rights as it was determined from his identification card that he was 21 years old. Schanck Dep. at 21, Def.'s Mot. S. J., Ex. 3. Schanck testified as follows:

Q. Do you recall any of the people out of the group specifically asking you what happens if we refuse to take [the PBT] or what happens if we don't take it?

A. I remember being asked that, yes. I don't recall which ones asked it. It think it was kind of a group question.

Q. Okay. And when that sort of question was posed what answer did you give to it as to what the consequences were for refusing to blow into the PBT?

A. I explained to them that they would be given a ticket with a civil infraction where the fines were up to a hundred dollars.

Q. Was there any implication in your response that they could be arrested for refusing to take it?

A. No.

Id. at 27-28.

The plaintiff and Ball agreed to take the PBT and both "registered negative" for alcohol consumption. Id. at 29. Kolka, however, refused to take the PBT. After Schroer told Schanck that Kolka had an outstanding...