Thanks to Huntington Beach police, we know that a homeowner can be arrested for taking a sip of beer while watching July 4 fireworks if he's standing in his open doorway. Cops claim a person's door is a "public" space and that they can ticket or arrest someone drinking in any public space. To the puzzlement of many local citizens, our courts condoned the concept.
But law enforcement isn't satisfied with that much power. In a recent case, the Tustin Police Department, along with the Orange County district attorney's office and the California attorney general, attempted to expand the definition of public space even further. They argued that private property such as apartment complexes surrounded by tall, metal fences with spikes on top and locking gates is also public for policing purposes.
At 9:18 a.m. on Aug. 5, 2005, Tustin cop Michael Kim stood outside the Flanders Point Apartments on Tustin Village Way writing a parking ticket when he says he witnessed a crime in progress. Kim saw Phillip Anthony Krohn begin to walk down a second story flight of stairs inside the complex. On the way to a trash dumpster, Krohn held a full trash bag in one hand and a 12-ounce Budweiser can in the other.
Kim, who previously worked as a bus/subway cop in Los Angeles, determined that Krohn was guilty of drinking in public, though he never saw the man drink or even lift the can to his mouth. The cop stood lower than Krohn, outside the complex, behind a tall gate and about 20 feet away. Kim later insisted he saw that the beer can was open when Krohn allegedly tilted the top of the can in his direction while on the staircase.
"I basically told him to come over to me," explained Kim, who then let himself into the gated community with a what he called an "emergency" key he carries in case of, he said, a fire. "I asked him if I could, you know, search him. He said yeah."
In his pockets, Krohn carried 17 grams of marijuana, almost six grams of methamphetamine and six Vicodin tablets but no prescription. Kim made an arrest and tossed Krohn inside the Orange County Jail. A judge ordered a $50,000 bail, which Krohn couldn't afford, and the DA's office charged him with possession of controlled substances.
At trial, the public defender's office tried to suppress the evidence by claiming Kim had initiated his detention of Krohn on illegal grounds. An officer cannot detain a citizen on the suspicion of drinking in public if the person is inside a private, gated apartment complex, they said. Deputy District Attorney William G. Fallon told Superior Court Judge Richard King that People v. Perez proved otherwise.
In that 1976 case, police arrived at an apartment in an ungated complex to settle a domestic dispute, knocked on the door, and allowed an intoxicated Mr. Perez to step into the hallway to tell his side of the story. The cops then arrested him for public intoxication because he stepped outside his dwelling. The court upheld the arrest, claiming Perez had voluntarily entered a public place: the hallway.
Fallon noted that California courts approve of the notion that "the area immediately outside a private home, including the lawn, driveway and front porch, is a public place." In their wisdom, judges have provided a single loophole. Such areas are private property only if the homeowner has enclosed his land with at least a three-foot-tall fence.
(No Southern California police department has been more aggressive on the issue than the one in Huntington Beach. In 1997, the City Council—at the urging of the local merchants association—passed an ordinance prohibiting alcohol consumption on private property in the downtown area during Fourth of July festivities. Encouraged, the cops arrested 238 people for drinking in public during the—note the irony—Independence Day celebration. A judge later called the arrests unconstitutional. The city, which gets income from arrests, followed by enacting a year-round ban prohibiting homeowners from drinking alcohol in their garages if the door was open. Public anger forced the council to limit their ordinance to just three days per year in July.)
In the Krohn case, prosecutor Fallon conceded that a massive fence with metal spikes and locked gates surrounded the Tustin apartment, but he offered Judge King a clever way to twist the key fact in favor of police. The prosecutor said the entire complex was public property because tenants frequently prop open locked gates at apartment communities. If someone can prop open a gate, then the public can enter, and thus the place is public, Fallon reasoned.
King, an Orange County prosecutor before he donned his black robe, bought it. In October 2005, he refused to suppress the evidence. Three months later, Krohn pleaded guilty to two counts of drug possession and was sentenced to two years in state prison. In February 2006, he appealed his conviction.
Correen Ferrentino, Krohn's appellate lawyer, asked the Santa Ana-based state Court of Appeal to rule that King, Tustin police and the DA's office had erred.
"Do the police have full reign to patrol the hallways of this heavily gated, locked, private complex in search of individuals possessing alcohol with the intent to drink?" wrote Ferrentino, who is based in Costa Mesa. "The possible slippery slope of [the cop's action] in this case could be troubling. How is one to conform his or her conduct to the law if his [or her] own home is deemed a public place without any clear criteria or definition?"
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.
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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.