FIGHT FOR YOUR RIGHTS (TO PARTY): ILLEGAL SEARCHES AT ENTERTAINMENT EVENTS

Most people are at least generally familiar with the Fourth Amendment to the U.S. constitution and the right it protects—for a person to be free from illegal searches and seizures. But this Amendment does not come into play only when a police officer wants to search your home or car—it applies to all searches done by police, or their agents, including those at sporting events and music festivals. In 2014 32 million people attended a music festival in the U.S. (higher than the population of Texas)[1] and a decent number of them probably had their constitutional rights violated without even realizing it. Several courts have considered whether a patron consents to a warrantless search at sporting[2] and other entertainment events.[3] This consideration typically takes one of two forms: 1) whether spectators can be required to submit to a search for alcohol, drugs, or weapons as a condition for entry into the event, and 2) whether a patron gives implied consent to a search by seeking admittance to an event when previously notified that he/she may be searched prior to entry.

It appears well settled that, standing alone, conditioning public access on submission to a search is unconstitutional.[4] It is commonly argued that patrons voluntarily consent to the search because signs are posted at the entrances warning patrons that they could be searched and the event tickets themselves contain similar language. However, this argument does not hold up. An organizer or municipality cannot condition public access on submission to a search and then later claim the search was consensual. Consent in such circumstances is inherently the product of coercion as the public typically (and rightly) believes that if they refuse to be searched they will be denied entry.[5] Furthermore, while private security may search you, with consent, for the purpose of deciding whether or not you should be allowed entry, your consent to such a search can be withdrawn at any point, and you can ask to be ejected and your ticket refunded.[6] If private security feels something in your pocket and asks to see it…you don’t have to show them.

Similarly, courts have skeptically viewed the doctrine of implied consent as a justification for warrantless searches. To determine whether patrons gave implied consent to a search, courts generally examine several factors: (1) whether the patron was aware that her conduct would subject her to a search,[7] (2) whether the search was supported by a “vital interest,”[8] (3) whether the officer possessed apparent authority to conduct the search,[9] (4) whether the patron was advised of her right to refuse the search, and (5) whether refusal would result in a deprivation of a benefit or a right.[10]

Anyone who frequently attends music festivals and other events eventually runs into that one security guard or off-duty police officer who has seen one too many fictionalized police dramas, is a fan of the Stanford Prison Experiment, or is just a lecherous creep and uses their position to essentially fondle or sexually harass a patron under the guise of a consented search for illegal drugs. However, when applying the factors mentioned above, courts have repeatedly refused to find implied consent at entertainment events.[11] For example, even the interest of a festival to keep out illegal drugs was not “vital” enough to allow anything more than the general limited search for weapons.[12] Courts typically conclude that under such circumstances, which are marked by coercion and duress, any ensuing consent to search cannot be deemed to be of a voluntary nature.[13]

Governmental entities have often argued that warrantless searches at festival events are analogous to warrantless searches at airports and courthouses (which are allowed). To date, that argument has not been well received. However, that does not prevent all security and police officers at festivals from overzealousness in searching of patrons, which can lead to criminal charges based on potentially excludable evidence. With the number of attendees of music festivals increasing every year, if such a violation of rights occurs, it is important, to have a discussion with a civil rights attorney to determine whether or not the evidence being used was obtained lawfully.

--By Doug Hanchar, Esq., Barnes Law

Doug Hanchar is an associate attorney with Barnes Law, licensed to practice law in California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice."

[1] http://www.digitalmusicnews.com/2015/04/14/32-million-people-in-the-u-s-attend-music-festivals/

[2] Jeffers v. Heavrin, 932 F.2d 1160, 1161 (6th Cir. 1991) (examining the policy of searching racetrack patrons); Jensen v. City of Pontiac, 317 N.W.2d 619, 620 (Mich. Ct. App. 1982) (examining the policy of searching patrons at professional football games).

[3] Gaioni v. Folmar, 460 F. Supp. 10, 14–15 (M.D. Ala. 1978) (examining the policy of searching patrons attending rock concerts); Florida v. Iaccarino, 767 So. 2d 470, 476 (Fla. Ct. App. 2000) (examining the policy of searching patrons at music festivals)

[4] Wheaton v. Hagan, 435 F. Supp. 1134, 1149 (M.D.N.C. 1977)

[5] 460 F. Supp.at 14.

[6] State v. Smith, 782 N.W.2d 913 (Neb.2010)

[7] McGann v. Ne. Ill. Reg’l Commuter R.R. Corp., 8 F.3d 1174, 1181 (7th Cir. 1993) (en banc)

[8] Id.

[9] See Fn.4

[10] See Fn.3

[11] Stroeber v. Comm’n Veteran’s Auditorium, 453 F. Supp. 926, 933 (S.D. Iowa 1977); Collier v. Miller, 414 F. Supp. 1357, 1366 (S.D. Tex. 1976); State v. Carter, 267 N.W.2d 385, 387 (Iowa 1978)

[12] Florida v. Iaccarino, 767 So. 2d 470, 476 (Fla. Ct. App. 2000)

[13] Id at 933