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Attorneys address student privacy issues

Katie Perry | Thursday, September 21, 2006

Recent busts at off-campus parties and tailgates have prompted many students to question what their rights are regarding interactions with the police – but local lawyers said the answers are not always clear.

The “layman’s interpretation” of rights is what gets students into trouble, said South Bend attorney Lyn Leone. Most importantly, she said, students should be aware of their right to silence.

“Everyone needs that tattooed on their forehead,” she said. “It’s one of the biggest mistakes my clients make.”

Leone said she advocates prudence and advises students to understand that police officers show up at off-campus parties or tailgates because they have probable cause to be there. Probable cause – “the big word,” Leone said – is the reasonable belief that a person has committed a crime.

“Yes, you can challenge [the police] at your doorstep – however they have probable cause,” she said. “That’s what you’re fighting at your doorstep. You’re not fighting being guilty. … The noise ordinance gives police officers the right to be there in response to [noise complaints].”

Rudy Monterrosa, a Notre Dame Law School graduate and part-time public defender in South Bend, said an officer’s right to enter a residence depends on the severity of the crime.

“I would argue that just because [an officer] sees people drinking, I don’t think that gives him a right to go into a house,” he said.

In the absence of probable cause, a resident can say the police are not allowed to enter his or her home, Monterrosa said. The resident can “fight it out in court” as long as there are witnesses present to corroborate his or her claim, he said.

“That’s what I tell all of my clients,” he said. “You have a reasonable expectation of privacy.”

In addition, allowing an officer to enter the residence does not grant him or her the right to search, Monterrosa said. If the police want to search that residence, they need a warrant or “exception to that warrant,” he said.

“If the resident says, ‘Yes, you can come in,’ what is within plain view – within his presence – is what an officer has the right to cite,” he said.

For example, if an officer enters a party and sees “people drinking underage, sees cups, sees beer,” he or she has a right to investigate that further and administer citations, Monterrosa said.

“Police cannot go through an apartment for drugs without a warrant,” he said.

Monterrosa said a “warrantless intrusion” can occur in four circumstances: if police are in hot pursuit of a fleeing felon, if police need to prevent the escape of a suspect, if police fear an imminent destruction of evidence or if there is a risk of danger to police or other civilians around the residence. Police must have probable cause with the last three exceptions, he said.

Capt. Phil Trent, public information officer for the South Bend Police Department, said when officers go to off-campus residences, they want to speak to whoever is responsible – “that’s primarily why they’re there.” SBPD officers enter off-campuses residences on a “case-by-case basis,” he said.

“Usually these things happen on weekends when we’re busy with normal city activity,” he said. “The officer wants to get in there, solve the problem and get out – whatever is most expedient.”

Monterrosa said police have the right to ask for identification at any time, though force should only be necessary when the individual is resistant.

“A lot of these cases are arrestable offenses – minor in consumption, minor in possession, public intoxication – and it’s within the police officer’s discretion to use handcuffs,” he said. “If the individual is cooperative or not that drunk, then in those situations the police will just give them a citation.”

Leone said probable cause requires an individual to take a breathalyzer test “on the spot” when in a drinking environment, such as a party or tailgate.

“That’s been challenged and contested and everything else,” she said. “You have to cooperate with the administrative process of the breathalyzer test because, at this point, that is the rule. It seems like an inherent admission of guilt, but the courts don’t see it that way.”

Trent said SBPD officers administer breathalyzer tests when an individual “appears underage” or if he or she “appears to be under a level of intoxication where they are a danger to themselves.”

Leone said even students who are not drinking are still subject to take a breathalyzer test and comply with police officers while at off-campus parties or tailgates. There is a chance they can also receive citations for being part of a public nuisance, she said.

Students of legal drinking age at off-campus parties or tailgates can only receive a misdemeanor charge for serving alcohol to a minor if the officer sees them committing the act, Monterrosa said.

The explanation provided by Indiana State Law, however, is somewhat grayer. According to the law, an individual who is 21 or older can receive an infraction if he or she “encourages, aids, or induces a minor to possess or use an alcoholic beverage.”

Trent said he would not give a citation for inducing unless he personally saw an individual furnish alcohol to a minor or if he was certain the individual was conducting the party. Police might learn who is responsible for the event through an online posting, he said.

Monterrosa said some students feel like they are “stuck between a rock and a hard place” or “in a Catch-22” when dealing with the police. Bad things happen when students fail to cooperate, he said.

“They key to this is not to be belligerent with the police, not to say, “Hey, I’m a Notre Dame student, you can’t do this to me,” Monterrosa said.

Leone said students who think they are being targeted fail to recognize that elected officials are under a lot of pressure to maintain a “good residential quality of life” in South Bend.

“I sense the attitude is, ‘Oh, we’re being picked on,'” she said. “You’re here to have a good time and relax but drinking has gotten to be a major problem. Don’t have the attitude that it’s a Gestapo kind of thing.

“The police are not there to pick on you. They’re there because they have the laws to protect neighborhoods and, if someone calls in, the police officers have to respond.”

Student body president Lizzi Shappell said students must learn how to become full members of the South Bend community – from being better neighbors to following local laws and learning their rights. It is important for students to understand the responsibilities that come with those rights without using them to “evade the law,” she said.

“If students are aware of their rights as members of this community, they should also be aware of the expectations of them as members of this community,” she said.

Leone said off-campus students should remember that they live within residential communities.

“I’d recommend to keep it indoors and keep it low-key,” she said. “It’s not the fun way to go to school, but it’s the responsible way to go to school.”

Both Leone and Monterrosa said students who receive citations or are arrested for offenses should always seek legal aid.

“If the charge is a misdemeanor, students can hire council,” Monterrosa said. “If they can’t afford that, then they should ask for a public defender. Under no circumstances should students try to handle it on their own.”

Monterrosa said there are opportunities for individuals to resolve cases without pleading guilty.

“If it’s a misdemeanor, it goes on your record forever, so you want to make sure you avoid that first conviction – or any conviction,” he said.

Monterrosa said one way students can avoid conviction is through the St. Joseph County pre-trial diversion program. Established by the Prosecutor’s Office, the program seeks to work with individuals with little or no criminal background who have been charged with a misdemeanor.

Cases of those accepted into the program “will be dismissed after a period of one year – meaning, no conviction – as long as the requirements and conditions of [the] specific agreement have been fulfilled,” according to the St. Joseph County Prosecutor’s Office Web site.

The program costs $315, which includes a $170 user fee and $145 in court costs. Monterrosa said the program is generally available to individuals if they are first-time offenders. Some crimes, like DWI and marijuana possession, do not fall within the statutes of the pre-trial diversion program, he said.

“One advice is that it’s not automatic and it does depend on the circumstances,” Leone said. “Sometimes you wind up with two, three or four charges based on one incident. … [But] nine times out of 10 they’ll allow the individual to have a pre-trial diversion.”

Leone said the pre-trial diversion program is valuable to students who worry about the ramifications of being charged with a misdemeanor. The program does not “hamper pre-med or pre-law students,” she said.