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Liquor enforcement officers may not detain bar patrons on suspicion of underage drinking without having witnessed suspected minors drinking on the premises, an en banc panel of the Pennsylvania Superior Court has ruled in a 6-3 vote. “We conclude that the [state] troopers lacked reasonable suspicion to detain [Colleen Wood] for investigation when they proceeded on nothing more than her appearance as appearing to be under 21 years of age,” Judge Justin M. Johnson wrote in Commonwealth v. Wood. He was joined by Judges Kate Ford Elliott, Michael T. Joyce, Maureen Lally-Green, John T. Bender and Mary Jane Bowes. In so ruling, the majority reversed the conviction of an underage South Street, Philadelphia, bar patron who had been cited for drinking following a raid on the bar by police and liquor enforcement officers. A leading appellate prosecutor said that the decision would hamper efforts to control underage drinking. But civil liberties advocates were pleased that the court restricted police action based on nothing more than the “appearance” of the suspect. The prosecution stemmed from a raid that occurred on Feb. 27, 2001, when Pennsylvania State Trooper Cynthia A. Taylor, on assignment as a liquor control officer, was working a detail to monitor underage drinking during the Mardi Gras celebration on South Street, according to the opinion. Taylor and her colleagues had been alerted by their superiors that there would be much underage drinking in the area during the festivities, the opinion said, citing the suppression hearing testimony of the trooper. Taylor had been instructed to enter South Street bars wearing civilian clothes, survey the premises to ascertain whether anyone of youth appearance seemed to be drinking, and radio for backup to come in and inspect the bar if minors appeared to be consuming alcohol. According to the opinion, Taylor testified that she and several other members of the State Liquor Control Department entered Name That Bar on South Street and began carding individuals they believed to be under 21 years old. All patrons found to be under the age of 21, or unable to prove that they were above that age, were taken to a separate area of the bar, while all patrons over 21 were ordered to leave. During the raid, either city police or state troopers blocked the entrance and exits to the bar until the identification of the patrons could be established. It was only once the under-21s and over-21s had been separated, the opinion noted, citing Taylor’s testimony, that the officers began the process of determining whether any of the under-21s had been drinking. After being segregated with the other underage patrons, 17-year-old Colleen Wood was overheard by Taylor as admitting that she had been drinking earlier that night, but not at Name That Bar. Wood was then set aside and cited by a Philadelphia police officer for underage drinking. “Ms. Wood’s detention was based solely on her appearance,” Johnson wrote. “The summary citation issued to Ms. Wood was based solelyon Ms. Wood’s admission, after being detained, that she had consumed alcohol earlier in the evening at a location away from Name That Bar. We conclude that Ms. Wood’s statement was acquired while she was unlawfully detained. Her admission, therefore, is inadmissible.” The opinion noted that Taylor had produced no testimony during her deposition that she or any of her fellow officers had seen Wood consume or attempt to purchase alcohol at Name That Bar or any other establishment. The majority on the panel sought to differentiate the instant matter from the court’s 1988 decision in Commonwealth v. Elliott. In that case, a police officer who had stopped a vehicle ordered a passenger to exit the car when he noticed a bag with beers on ice resting behind the passenger’s seat, smelled alcohol coming from inside the car, and observed empty beer bottles lying on the vehicle’s seats. When the passenger, who was underage, exited the vehicle, an open bottle of beer that had apparently been wedged between the door and the passenger’s leg fell out. The opinion pointed to Elliottas an example of how an officer’s reasonable suspicions based upon available evidence resulted in a discovery of criminal activity that did not conflict with the Fourth Amendment. In Wood, however, the majority found that the liquor control officers’ lack of evidence to support their suspicions resulted in an unreasonable seizure. “Though it is against the laws of this commonwealth to consume alcohol while under the age of 21,” Johnson wrote, “there is no statute making it a crime for persons under 21 simply to be present in a bar on one isolated occasion.” In a dissenting opinion, Judge Correale F. Stevens, joined by Judges Joan Orie Melvin and Robert A. Graci, argued that the officers acted correctly in assuming that Wood had no logical reason to be in the bar other than to drink, thereby breaking the law. “The apparent age of appellant, along with the place, time, and circumstances surrounding her presence in Name That Bar were sufficient for experienced officers to briefly detain appellant for investigative purposes,” Stevens wrote. “In fact, I conclude that it would have been a dereliction of their duty for Pennsylvania liquor control officers not to further investigate for underage drinking in circumstances such as those presented here.” Hugh Burns, chief of the appeals unit for the Philadelphia District Attorney’s Office, wondered how law enforcement officials were supposed to respond to the court’s mandate. “It’s difficult to imagine how you would go about enforcing the law in a situation like this one,” Burns said. “This is South Street on Mardi Gras, it’s packed with people — it’s bedlam. . . . Maybe the majority is trying to tell us that the police will have to stake out a particular bar and watch a particular person who appears to be young and is drinking and proceed from there.” Burns was the attorney of record in the case, but he said that Peter Carr argued the case on behalf of the Philadelphia district attorney. “This is straightforward application of good, old-fashioned Fourth Amendment principles,” Larry Frankel, legislative director for the American Civil Liberties Union of Pennsylvania, said of the court’s decision. “The ruling doesn’t create a block [to authorities' enforcing underage drinking laws] at all. If they see someone underage drinking, they can go ahead and arrest them. But this protects all of us from being stopped by the police just because they don’t like the way we look.” Wood’s counsel, Richard T. Brown Jr., a solo practitioner from Philadelphia, said that his client’s sentence had been stayed while her case had been on appeal. “The opinion recognizes that it’s not illegal for minors to be in Pennsylvania bars,” Brown said, “and that therefore, looking young, even if the police know for a fact that a person is under 21, doesn’t give the police reasonable suspicion to believe that a crime had occurred or was about to occur.” Rebecca Shaver, state executive director for Mothers Against Drunk Driving of Pennsylvania, criticized the court’s decision. “I can see where there would be some discrepancy if the person were 20,” Shaver said. “But this is a 17-year-old child who has no reason being in a bar that serves alcohol. . . . It was unfortunate that the Superior Court felt that they had to rule this way. We at MADD are the ones who get the calls telling us how their child did not survive a crash. And then, it’s too late.” (Copies of the 24-page opinion inCommonwealth v. Woods , PICS NO. 03-1469, are available fromThe Legal Intelligencer . Please call the Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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