The Beer That Made Tustin Infamous

OC cops seek to expand anti-public-drinking laws to private property

The argument was lost on the attorney general's office. Last November, Deputy AG Scott C. Taylor—on behalf of then-state AG Bill Lockyer, a Democrat—insisted that the private gated community is public property, and thus Kim's suspicions that Krohn, 48, was drinking in public were legally "justified."

"The mere presence of a locking gate is insufficient" to call the complex private, Taylor told the appeals court. "It is probable any member of the public could gain access to the common area simply by waiting near the gate to be let in by one of the numerous individuals passing through the gate."

He tried this, too: Private property is public if "delivery men, service men, solicitors, visitors and other strangers" can enter.

Justices Raymond J. Ikola, David G. Sills and William F. Rylaarsdam weren't amused.

"The fences and gates certainly challenge public access to the courtyard," they wrote in a unanimous March 28 opinion. "This is true even if the front gate is periodically propped open. The courtyard is not readily accessible to the public. It is not a public place. Thus, even if the officer reasonably suspected the defendant was drinking beer in the courtyard—itself a doubtful proposition—the officer had no reason to suspect he was doing so in a public place. . . . The officer had no right to detain him."

The justices ruled that King should have suppressed the confiscated drug evidence before the criminal trial. They reversed Krohn's conviction and, to prevent future cops and prosecutors from succeeding at the same stunt, granted Ferrentino's April 27 request to publish the opinion as legal precedent.

rscottmoxley@ocweekly.com

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