Occupy Boulder: Evidence suppressed after police enter tents without warrant
For two Occupy Boulder protesters arrested for violating the city's anti-camping ordinance, the Fourth Amendment's protection against unreasonable search has proven to be a valuable defense. In the case of Peter John Jentsch and Katie DeMichele, Boulder municipal judge Linda Cooke approved the suppression of evidence police officers collected by searching their tents without a warrant.
The main issue at the center of the dispute is whether the protesters could reasonably expect any sort of privacy from their political home on the courthouse lawn. Boulder attorney David Harrison, who represented both Jentsch and DeMichele pro bono in addition to individuals involved with more than sixty other illegal camping cases in the past, argued in court on Monday that they could.
Because previous cases have set a precedent for tents to be legally treated with the same weight as a person's private domicile, the idea here is that by entering into the tent without a warrant, the police officers essentially entered the protesters' homes without permission in order to collect evidence.
"The city has not been accommodating to the protesters' rights to protest their government for a redress of grievances," says Judd Golden, the Boulder County ACLU chapter's chairman. "They are applying the law exactly the same across the board, whether you are a protester or homeless or just think it would be fun to camp out in the park in your free time. What we need is for them to be flexible."
Cooke's recent ruling to suppress evidence collected inside the tents without a warrant follows a similar decision she made on Monday. Earlier in the week, Cooke elected to dismiss the testimony provided by a Boulder police officer who looked inside a tent after bending down and using a flashlight to see inside. Although the need for a warrant comes with an exception for evidence that is in open view, her decision suggests the officer's actions overstepped the protesters' right to privacy and did not fall with in a readily available view plane.
And because Boulder's city ordinance protects only against sleeping inside the tents, not putting them up in the first place, evidence that the protesters were physically camping inside of them will be necessary in order to prosecute the charges. (Under the city's new park ordinance, this has changed: In new cases, it is illegal to step foot onto the occupation's new home between 11 p.m. and 5 a.m.)
"Society's view of the degree of privacy afforded a person's tent does not turn on what activities are being conducted inside," Cooke wrote in a statement received by the attorneys working on the case yesterday. "Rather it is the concept of a tent as a temporary abode, and all that is implied by that characterization, that gives rise to an expectation of privacy that society recognizes as reasonable."
Harrison told Westword that he expects the charges to be dropped because of a lack of evidence after the suppression.
"If the court suppresses the officer's observation of what she said was sleeping, then they really don't have any evidence of a criminal violation," he says. Although not all of the protesters found their on-site evidence suppressed, he and the other attorneys involved have planned further arguments he believes will also push for other cases to be eventually dismissed, too. "I highly doubt any of them will be convicted, but that is definitely the clearest way to get the charges dropped. There's no support to hold them up in court."
Although Monday's trip to court included six Occupy Boulder protesters, their illegal camping charges are backed by varying situations. In a few cases, officers were able to see inside the tents through a mesh wall or by simply adjusting a tent flap, while in the case of Jentsch and DeMichele, who were ticketed on November 21, they physically entered into the tents.
So far, Cooke has denied similar motions to suppress evidence for the same violation of privacy in the cases of two other protesters.
More from our Occupy archive: "Occupy Boulder: Attorneys use Fourth Amendment to defend protesters."