Request By:
Lt. John D. Salyers
Juvenile Officer
Erlanger Police Department
505 Commonwealth Avenue
Erlanger, Kentucky 41018
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
This is in response to your request for an opinion of this office regarding the sale of alcoholic beverages to minors. Please excuse the delay of our response. You indicated in your letter that the City of Erlanger has experienced a growing problem with teenage drinking, and that the police department has devised an investigatory scheme to assist in abating this problem.
In executing this investigation you have planned to have an 18 year old enter an establishment possessing a retail package or drink license to attempt to purchase alcoholic beverages. A plain clothes police officer would also be in the establishment to observe any transaction between the teenager and the business owner or employee. To insure the integrity of the plan the following steps would be taken:
1) The 18 year old used in the investigation would be a willing volunteer whose appearance and character indicated his true age;
2) Permission would be obtained from the parents of the teenager to use him in the investigation;
3) The teenager would be searched for any type of identification, and all identification taken from him;
4) A breathalizer test would be administered to the teenager both before and after he entered the suspect business in order to demonstrate that he was not permitted to consume any alcoholic beverages;
5) The teenager would be instructed a) to enter the premises and ask to purchase a drink or some type of package goods; b) if asked for identification he would reply that he has none; c) that he would say nothing to mislead the seller into believing he has proper identification, but forgot or lost it; and, d) that if he is asked his age, his reply would be 18 years old.
You have noted that any evidence obtained in the investigation would be properly marked and tagged by the police officer in charge.
Having explained the method of your investigation, you have posed the following six questions:
1) Would this be a proper investigation?
2) Would the 18 year old volunteer be subject to prosecution under KRS 244.083 or 244.085(2)?
3) Would the police officers conducting the investigation be subject to prosecution under KRS 244.085(3)?
4) Would the defense of entrapment be available to those charged with a violation of the alcoholic beverage statutes as a result of the investigation?
5) Would any other types of defenses be available to the violator?
6) Could the identity of the teenager be protected as a confidential informant?
Responding to your inquiries in the order posed, it is our opinion that your investigation would be proper. It is also our belief that neither the teenager nor the police officers involved in the investigation would be subject to prosecution.
While KRS 244.083 and KRS 244.085(2) make it a violation of the alcoholic beverage control laws for an individual under 21 years of age to purchase or possess such beverages, we perceive these statutes to be inapplicable to the factual circumstances you have presented. The teenager in this instance is a voluntary agent of the police department, with parental approval, involved in an attempt to halt the illegal purchase of alcoholic beverages by minors. He is not purchasing the beverages for his personal use but for the purpose of a legitimate police investigation which could not be conducted without his assistance. The intent of these statutes -- to discourage the purchase and possession of alcoholic beverages by minors for their personal consumption -- is not defeated by your investigation or the teenager's participation. To the contrary, quite the opposite is evident.
This same reasoning applies to the police officers conducting the investigation. KRS 244.085(3) provides that no one shall assist an underaged individual in the purchase of alcoholic beverages. Here, again, however the intent of the legislation is in fact being served by the investigation.
In response to your fourth inquiry, the defense of entrapment may be properly argued where the government induces a person to commit an offense not contemplated by him for the purpose of instituting a criminal prosecution. Delaney v. Commonwealth, Ky., 520 S.W.2d 747 (1975). However, where the government merely furnishes an individual the opportunity to commit an offense, as here, and the intent to violate the law is already present in that person's mind, entrapment does not ordinarily exist. Entrapment would also fail as a defense where the accused was known to have been previously engaged in similar violations of the law. Shanks v. Commonwealth, Ky., 463 S.W.2d 312 (1971).
Generally we are unaware of any types of defenses that could be entered by the accused as a result of your investigation other than those posed above, and any affirmative procedural pleas available to the offender. It should be realized, however, that this opinion is not binding on the courts of this Commonwealth, and the matters previously discussed could, and most probably would be presented to a court hearing a case resulting from your investigation.
Finally, it is our belief that maintaining the confidentiality of the teenager's identity would be within the trial court's discretion, but would probably be honored where the violation is observed by other witnesses and the integrity of the evidence is maintained.