Citation - Probable cause, private property, etc

What is the name of your state (only U.S. law)? Pennsylvania

Here is the situation... I am in an ongoing dispute with my next door neighbor for the last few months regarding a property line disagreement. I have trees planted about 5 feet on my side of the property line, which have grown and now have branches which overhang his property. He began cutting the limbs of the trees which were on HIS side of the property line, which he has the right to do, so I did not make an issue of it. However, one day I cam home and he cut a large limb that was clearly on my side of the property line. To create a legal record, I called the police who came to the property and spoke with the neighbor regarding this, and the policeman created a police report so that I would have something on record, if I needed it.

In any case, a week or so ago, my 24 year old son, his 30 year old cousin and my 20 1/2 year old nephew were out on my back deck (on the rear of the house, not visible from the street) having a cigarette and a beer and talking. The 20 1/2 year old had just picked up the 24 and 30 year olds who were out at a bar and had been drinking, and did not want to get a DUI. Therefore, they called their cousin to come and pick them up. This is how my family has operated for years (the younger sober drivers are called when the older kids have been drinking).

There was no music playing, no loud noise of any kind, but this neighbor called the local police. When the policeman arrived, he walked to the rear of my house, walked up on the deck and stated "this is a ridiculous call", but explained to them that an anonymous neighbor had called to complain about the noise. The three boys were sitting there and there were 3 cans of beer opened on the table. The cop asked each of them for ID, which they gave him. The cop then breathalized the 20 1/2 year old, and he blew a .03 since he had had half of a beer. the 20 1/2 year old lives directly across the street from me, so he would not be driving anywhere, he would obviously walk home.

Here are my questions..
1. Did the policeman have the right to come on to my deck since he heard no noise, and he himself stated that this was a ridiculous call?
2. Did the policeman have the right to ask the boys for their ID?
3. Did the policeman have the right to breathalize the 20 1/2 year old?

JMattero said:

1. Did the policeman have the right to come on to my deck since he heard no noise, and he himself stated that this was a ridiculous call?

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Possibly.

If the call said there was a disturbance in the backyard, and there was no fence or other obstruction to his entry to the yard, then he may well have had the right to go around. If he tried the front door but received no answer and heard the noise or the voices in back, that may also justify his entry to the back yard. It all depends on the nature of the call and what the officer knew and believed. The defense can always make a motion to suppress if the attorney thinks there is a shot.

2. Did the policeman have the right to ask the boys for their ID?

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If he believed he had underaged drinking, and that is unlawful on private property in your state, yes. And under any situation an officer can ASK for ID ... whether he could compel them to ID themselves is a different question.

3. Did the policeman have the right to breathalize the 20 1/2 year old?

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Same answer as for #2.

The police can do a great many things when people comply. Where the legal issues arise are when the police act to compel someone to do something when they refuse.

Was anyone actually cited? If so, what code section was issued?

Thanks for the quick reply!

1. There are no obstructions to coming around the back of the house. He could have possibly knocked at the front door, but my wife and I were both sleeping, and the only others who were home at the time were out on the back deck. Would a "motion to surpress" be the same as claiming that the policeman did not have probable cause to come to the back deck, since he obviously (by his statement) knew that there was no disturbance? THe call he received was a noise call, not a disturbance call, if that makes a difference.

2. I am not sure about the law in my state, Pennsylvania, and the underage drinking on private property. My sister in law (his mom) has no problem with him having a beer or two as long as he is doing it at home or at a family members home, and is not going to get behind a wheel. Do you know what the state of PA says regarding this? I understand what you are saying about the "asking" versus "compelling". I have always taught my children to have respect for the police, and to cooperate with them. After this, I am not so sure that was good advice. I feel that this policeman overstepped what was necessary in this situation. If my nephew refused to provide ID, could he have suffered any other consequence?

He was cited for Underage Drinking. I do not have the citation in front of me so I don't have the actual code. It should be noted that when the policeman wrote him up, he told him that my nephew should schedule a hearing, and the policeman would recommend to the DJ that he get 2 hours of Community Service, and then everything would be dismissed. When we got to the hearing, the DJ had 5 or 6 kids in the courtroom, and made a blanket statement to all of them stating that they could agree to do 32 hours of Community Service as first offenders and then come back to the court, and they would dismiss the charges. He asked everyone if they would take that deal. I stated (for my nephew) that that was not his understanding from the officer, and asked if the officer was in attendance. Since this was a part time officer, he was not there. I then asked the DJ if that meant that the case was dismissed, since the policeman did not show up, and the DJ said that he routinely grants each side one continuance, even when the policeman is not there. Although I thought that was not proper procedure, I did not argue any more with the DJ, since I didn't want to "shoot myself in the foot". Any advice???

JMattero said:

1. There are no obstructions to coming around the back of the house. He could have possibly knocked at the front door, but my wife and I were both sleeping, and the only others who were home at the time were out on the back deck. Would a "motion to surpress" be the same as claiming that the policeman did not have probable cause to come to the back deck, since he obviously (by his statement) knew that there was no disturbance? THe call he received was a noise call, not a disturbance call, if that makes a difference.

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Yes, a motion to suppress would likely be based upon an argument that the officer had no exigency to justify entering the property. How that would play out would depend on all of the details of the situation including the officer's perspective.

2. I am not sure about the law in my state, Pennsylvania, and the underage drinking on private property. My sister in law (his mom) has no problem with him having a beer or two as long as he is doing it at home or at a family members home, and is not going to get behind a wheel. Do you know what the state of PA says regarding this?

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Specifically, no. In my state it would be okay for him to drink as he is an adult, but unlawful for someone to provide him with the alcohol ... odd. What PA says on the matter, I cannot say. That is why knowing the specific statute charged would help.

I understand what you are saying about the "asking" versus "compelling". I have always taught my children to have respect for the police, and to cooperate with them. After this, I am not so sure that was good advice.

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Well, if the officer had good cause under state law to compel ID, their refusal might be sufficient to get them tossed in the clink.

Speaking from first hand experience, cooperation tends to receive the lenient side of discretion. If we have people that are being obstinate, and we have the choice of a custodial arrest or a citation, being obstinate will often result in the custodial arrest.

I feel that this policeman overstepped what was necessary in this situation. If my nephew refused to provide ID, could he have suffered any other consequence?

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That, I do not know. I believe PA does not require identification for a detention, but, if the officer had good cause to believe another offense was occurring he might then resort to making an arrest and compelling ID that way.

He was cited for Underage Drinking. I do not have the citation in front of me so I don't have the actual code.

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There could be a number of sections that might apply - including muni codes. The section itself will tell us - and an attorney - what elements the state has to show for a conviction.

It should be noted that when the policeman wrote him up, he told him that my nephew should schedule a hearing, and the policeman would recommend to the DJ that he get 2 hours of Community Service, and then everything would be dismissed. When we got to the hearing, the DJ had 5 or 6 kids in the courtroom, and made a blanket statement to all of them stating that they could agree to do 32 hours of Community Service as first offenders and then come back to the court, and they would dismiss the charges. He asked everyone if they would take that deal.

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If the officer actually said that, he shouldn't have. I try to advise people what I have seen happen, what tends to happen, and maybe what I think should happen, but I avoid telling people what WILL happen.

Either the officer erred in stating that two hours of community service would be required, or he was heard wrong. It would not be the first time that one or both of those mis-communications has occurred.

I then asked the DJ if that meant that the case was dismissed, since the policeman did not show up, and the DJ said that he routinely grants each side one continuance, even when the policeman is not there. Although I thought that was not proper procedure, I did not argue any more with the DJ, since I didn't want to "shoot myself in the foot". Any advice???

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You're lucky the judge did not tell you to clam up. You are not an attorney, and your nephew is an adult. Most courts would have shut you down.

Your nephew might have been able to make a motion for dismissal, but this sounds very much like our traffic court system which allows the rules to be a little less rigid on things.

Perhaps he'll get lucky and the officer will not show again. Or, he can choose to defend himself at trial or pay a good deal of money for an attorney to defend him at trial. This is not the crime of the century and the court seems like they are giving him a chance to get out of this without a record. His options now might be to put up a defense, or come back and agree to the plea and the DEJ.

the cop asked the kid to take the test & he did. he could have refused but did not from what i gather. The kid should take the deal the judge offered IMO.