A physical encounter with a police officer can be intimidating, even when you haven’t committed a crime. As stated in Miranda v. Arizona, “the modern practice of in-custody interrogation is psychologically rather than physically oriented.” Interrogation doesn’t need to happen in a closed-off police room to be psychologically coercive; interrogation can happen while walking down the street at night. Miranda further described police interrogation goals, writing, “the subject should be deprived of every psychological advantage” with regards to the interrogator.
Taking the coercive and intimidating nature of police encounters into consideration, students and teenagers are at a distinct disadvantage when faced with these police encounters, especially when taking into account the fact that police can lie to you to extract a confession, as decided in Frazier v. Cupp, and that police may also fabricate evidence to extract a confession from you.
The only way to equal the playing field between students and police officers is for students to know and “flex their constitutional rights.” One specific issue students may not be fully informed about is their constitutional rights in Michigan in regards to MIPs.
Let’s assume that a group of students aged under 21 are at a house party, some drinking alcohol, some not drinking alcohol. Police are called to investigate the party and find this group of students walking away from the party. The police officers ask the students to take a preliminary breathalyzer test (PBT) in order to determine if they have been drinking. Do the students have to submit to the PBT?
The answer is no. The police must have a search warrant to give a student a PBT, unless the student gives his or her consent. As decided in People v. Chowdhury (2009), there is no exception to the warrant requirement for administering PBTs when people are walking down the street.
Under the Fourth Amendment, PBTs are considered searches, as held in Skinner v. Railway Labor Executives’ Association. As such, these searches must be “reasonable.” Also, for searches to be reasonable, they must be accompanied by a search warrant, unless there is a warrant exception.
People v. Chowdhury held that there was no such warrant exception to PBTs. It was argued that both the “special needs” and “exigent circumstances” exception to search warrants should apply to PBTs but the court was not persuaded.
The court found that there was no “special” need to detect the “evidence of ordinary wrongdoing.” The court further found that no “exigent circumstances” applied because a search warrant could be obtained in “an hour and fifteen minutes” but it would take “two hours and twenty minutes” for the average male to dissipate alcohol from his blood, enough time to get the search warrant before the evidence would be “destroyed.”
So, regardless of if you have been drinking or not, if you find yourself walking down the street at night or at a house party, you don’t have to consent to a PBT.
Simply tell the officer you don’t consent to searches and that a PBT is considered a search. If they don’t respect your rights and force you to take a PBT without a search warrant or your consent, a judge will exclude the results because it was gained in violation of your Fourth Amendment rights. Remember to “flex your rights,” because without doing so, constitutional rights eventually erode.
