Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A roadside chat from the studio on underage drinking enforcement. The question comes from an officer in a large college town in South Dakota where fake IDs have taken over, and the city wants the police to do something about it. Can you walk into a bar and ask for IDs, what if the bar owner tells you to leave, and does one fake ID from a traffic stop give you reasonable suspicion for the whole bar?

This question comes from an officer in South Dakota, and it’s basically, can officers demand IDs from patrons in bars? The idea is to look for underage drinkers. It’s a little more complicated now. Let me give some context here.

So the officer works in a large college town, and fake IDs have taken over. I spoke to this officer and he said that, I guess, China is doing a great job with these IDs, because they look legit. So the security officers, they’re doing their hologram checks and all these kinds of stuff, and they just have all the features of a real ID. They don’t have the card scanners, but they look through them under black light and stuff like that. So they’re very effective.

Basically, his experience is that almost every college kid has one of these fake IDs to go to the bar and to drink. They will, if they see somebody coming out of the bar that looks underage, try to contact them with a consensual encounter, maybe a traffic stop if they get a violation, and so forth. So the city manager and the police are getting a lot of complaints about the underage drinking. The public think it’s becoming a bigger and bigger issue, so they want to take some action.

So here are some of the questions. Number one, can the police officer enter the bar and ask people for their ID? A consensual encounter. Not demand, but just ask. Would this violate the patron’s rights? And also, what about the bar owner? Can they say something and do something about this?

Can police walk into a bar and ask customers for ID?

So let’s stop right there and let’s answer that question. Certainly it does not seem to be any problem to walk into a bar like a regular customer, and to go up to people and make a conversation and ask them for their ID and so forth. That would not implicate any constitutional issue. It would also not violate the bar owner’s rights, because there’s no constitutional prohibition on law enforcement officers entering a business and checking things out.

What if the patron refuses to show ID?

But I got a couple of things. Number one, what if the patron says no? Well, if the patron appears to be underage based off the officer’s training and experience, then we can have a reasonable suspicion encounter. We have a Terry stop, and therefore you can demand ID. You can confirm or dispel your suspicions. But if the officer does not feel confident to go down that route, and the person could be over age, then I would leave it alone.

Can a bar owner tell the police to leave?

What about the bar? Well, as a former law enforcement officer, I’ve done plenty of bar checks. Going into bars, check out the situation, make sure that people are not being over served, and so forth. I’ve never had a situation where the bar told police to leave. However, if you ask me what would happen if they did tell police to leave, I believe that police have to leave. It’s a private business, and there is no constitutional authority to stay on a private business when the cops have been trespassed.

There are situations out there, you hear sometimes they occur, where you have an anti-police establishment. For example, there was a coffee shop, or more than one coffee shop, I don’t know, but I know at least one coffee shop in Portland, Oregon, who did not want to serve police officers. They said as much. Like, we’re not going to serve you, you’re a police officer. Can the coffee shop owner do that? And the answer is yes. They have a right to refuse service to people. They can’t do it based off a person’s race, gender, ethnicity, national origin, things that are protected by federal law. But your profession is not protected by federal law, so they could turn you away. That’s the same situation in the bar.

Are bars a highly regulated industry that police can inspect?

But Anthony, hold up. The bar is much different than the coffee shop. And I agree. These bars are what’s called a highly regulated industry, like junkyards, gun stores, hunting and fishing. Those are highly regulated. But in order for that to actually mean anything, you have to have laws that say, hey, as a result of having a bar in our town, you’re subject to periodic inspection by police officers.

A town, in my opinion, could pass that ordinance. Now, you can’t enforce it to harass, or do it in such a manner that the person is losing business because the cops are in the bar every 15 minutes, unless you have something specific going on. You have to do it reasonably and so forth. But the key here is that you would have to have that law on the books first, to give that business owner notice that, as a recipient of a liquor license, they could be subject to these routine inspections. That the cops can come in and take a look around.

But if you don’t have that law, then there is no notice, and it’s not fair. You’re not going to be able to overcome the person’s objection to police being on the premises. So you have to leave, unless there is a crime occurring inside the bar. Like, cops know that there’s underage drinking going on in the bar. Not just a hunch, but have probable cause or a reasonable suspicion. That might change the equation. But to do the inspections, you should have a law if the person is telling the police to leave.

So there’s that. Asking for ID, good. Staying in the bar, fine. Act like a normal customer. But if the bar owner says leave, in my opinion, you do have to leave, unless you have something else going on, or that law.

Does one fake ID from a traffic stop justify checking IDs in the whole bar?

There was another question about conducting a traffic stop of a car leaving the downtown area. I originally thought the cop was asking, can we just do random checks? Of course that’s not what they meant. He meant, if we see a violation, can we stop the car, see if we can find that fake ID? He says oftentimes they’ll give him up right then. Then, does that give us reasonable suspicion to go into the bar and start ID’ing people?

That’s my final question, and the answer is no. Not necessarily. Not just based off of somebody having a fake ID can you now go into the bar, kick the lights on, and say, all right, show me some IDs. I’m not sure this officer is meaning to do this. I’m just adding my own little commentary in this.

That will give you another reason to believe that the bar may be lax on ID laws and so forth, and maybe gives you an incentive to go into the bar and look for more underage drinkers. But it’s not going to give you necessarily any authority to demand IDs from people without that particularized suspicion as to them. So we’re back in the same boat as I originally started.

So look, great question. A lot of moving parts in this. Hopefully I moved the conversation forward.

The short version

  • Walking into a bar like a regular customer and asking people for their ID does not implicate any constitutional issue, and it does not violate the bar owner’s rights.
  • If the patron says no, and they appear to be underage based off the officer’s training and experience, you have a Terry stop and you can demand ID. If the person could be over age, I would leave it alone.
  • If the bar owner tells police to leave, I believe that police have to leave. It’s a private business, and your profession is not protected by federal law.
  • Bars are a highly regulated industry, but for that to mean anything, you have to have a law on the books first that gives the owner notice of periodic inspections.
  • One fake ID from a traffic stop does not give you authority to demand IDs from everyone in the bar without that particularized suspicion as to them.

Until next time, my friends, keep up the great job you’re doing.

Related from Blue to Gold

This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: Ep. #174