The Montana Supreme Court will soon rule on whether a former University of Montana student’s rights were violated by officers who cited her for underage drinking.
Marcy Kroschel was ticketed for minor in possession of alcohol while attending a UM football game. But her lawyer argues that the officers went beyond what the law allowed when they stopped Kroschel and — without reading her rights — continued to interrogate her for the information that was used to incriminate her in the case. The state Supreme Court heard arguments from attorneys on both sides Wednesday.
An assistant attorney general, who represented the city of Missoula in the appeal, said the officers were within their bounds to continue to follow up after Kroschel initially lied about her name and age.
Kroschel, who was 20 at the time, and a friend were attending a football game in August 2015 when they were stopped by a pair of University of Montana police officers on minor-in-possession patrol. The officers thought the pair were walking unsteadily and one reported smelling alcohol on Kroschel, according to court documents.
When asked for identification, Kroschel said she'd left it in her coat in her seat. In response to further questions, Kroschel gave the wrong spelling of her name and an incorrect birthdate, and the officer was not able to find her in either the UM database or the national criminal database, according to the documents.
Officers repeatedly demanded that Kroschel provide the correct spelling of her name and her date of birth, saying they would take her to the station or jail if she didn’t. However, under normal conditions, a minor in possession offense does not usually result in arrest.
When Kroschel tried to leave, an officer grabbed her and told her she was not free to go. She was led downstairs to a supply closet, where officers continued to question her about her name and birthdate. Kroschel, who reported that she didn’t think they would let her leave until she gave them the answer, eventually provided her true name, allowing the officers to discover that she was underage. Kroschel was cited for minor in possession.
Anne Hamilton, an attorney with the Associated Students of the University of Montana’s Legal Services division who has been representing Kroschel, said the officers went beyond what was allowed during what is legally termed an “investigative stop.” Without being actually arrested, Hamilton said Kroschel was taken into custody and asked incriminating questions without being advised of her Miranda rights.
Under state law, officers are allowed to detain people temporarily under suspicion of criminal activity without a full arrest, with the law saying they are allowed to ask for a person’s name, address and an explanation of their actions during such stops.
In lower courts, Kroschel argued that her statements to the officers should be suppressed — and her conviction dismissed — because the officers violated her rights by going further than the law allowed. Both Missoula Municipal Court and Missoula County District Court have already denied her motion.
Hamilton said in decades working at ASUM Legal Services, she’s handled “tons” of minor-in-possession cases, many with factors similar to Kroschel's case.
“I’ve been waiting a long time to try to get some clarity on this issue,” Hamilton said. “We’ve been repeatedly brushed off by the lower courts who just can’t accept that the law says what it says.”
Demanding Kroschel’s identification and her birthdate both went beyond what the law allows, and violated Kroschel’s right against self-incrimination, Hamilton argued. While under ordinary circumstances information like a name and a birthdate might seem trivial, in Kroschel’s case they were the evidence that allowed the officers to determine Kroschel’s violation, and ticket her for drinking while underage, the attorney said.
As soon as Kroschel felt like she couldn’t leave, when the officer grabbed her and told her she couldn’t go, Hamilton said her client should have been considered in custody, and needed to be read her Miranda rights before being asked any questions meant to elicit incriminating information.
But the justices on Wednesday questioned what an officer in the Kroschel situation should have done, with Justice Beth Baker saying that they can’t be put in a position where people could avoid tickets by simply lying when first stopped. Hamilton said that they should have found other angles to continue their investigation instead of violating the law by detaining Kroschel and demanding answers.
Hamilton pointed the high court to a prior ruling it made in the case of State v. Driscoll, where a young-looking man holding a beer in a bar was approached by officers. The man lied about his age and didn’t hand over identification. Officers took him outside and continued their investigation, eventually arresting Driscoll when he again gave a false age and name. After the arrest, Driscoll admitted the accurate information and was charged.
But Driscoll’s statements to officers were suppressed by a judge, a decision later upheld by the Montana Supreme Court, which ruled that the police improperly expanded their investigation by taking Driscoll outside and demanding identification. Once he answered that he was older than 21, the officers had no facts to continue to believe he was a minor and should not have continued, or should have found another way to investigate, the court ruled in the Driscoll case.
Assistant Attorney General Mark Fowler, had a fairly blunt response to applying the ruling from Driscoll’s case to a similar situation in Kroschel’s.
“Driscoll is wrong. I would like you to overrule Driscoll,” he told the justices.
By the court deciding that the law only allows a limited set of questions during brief investigative stops it was “imbuing the statute with prescribing methods of law enforcement that don’t make sense,” Fowler said.
“(The officer) is fulfilling, if not the letter of the law, the spirit of the law.”
While the city of Missoula had originally argued that Kroschel was never in custody during the encounter, Fowler said Wednesday that she had been from the moment the officer grabbed her arm and stopped her from leaving. Even so, he said the questioning in the storage room didn’t count as an interrogation and she didn’t need to be read her Miranda rights.
“Marcy Kroschel was the architect of the encounter that occurred. ... It was she, when asked a reasonable question of who are you and state your name, gave a lie,” he said.
The officers were only attempting to verify Kroschel’s identity, Fowler said, not try to get her to admit to breaking the law. Justice Jeremiah Shea told the attorney that in this case, the information they were trying to get from Kroschel was specifically the information that allowed them to issue her a citation.
Fowler offered another fallback, saying even if the court found Kroschel was in custody, and even if they found that the questioning was an interrogation, they should still find an exception for this case, repeating that name and birthdate were simply “biographical data” — not something that should be considered forced testimony.
Furthermore, the question of her true name couldn’t be considered designed to incriminate Kroschel because if she was of age, the answer could also have cleared her from suspicion, Fowler said.
Justice Dirk Sandefur still didn’t sound fully convinced.
“We can’t divorce the justification for this, which was to investigate an MIP … from the reason why they are asking for her identification,” he said.