A judge has ruled that police violated two Occupy Boulder protesters’ Fourth Amendment rights when officers opened tent flaps to see whether the people inside were sleeping.
In a ruling received by attorneys Thursday, Boulder Municipal Judge Linda Cooke said the Occupy Boulder protesters did have a reasonable expectation of privacy while camping on the lawn of the Boulder County Courthouse on Pearl Street. Police did not have warrants to search the tents, and as a result, the observations of the officers will be suppressed in court.
The two protesters, P.J. Jentsch and Katie DeMichele, were ticketed Nov. 21 along with nine others at the site of the former Occupy Boulder protest. Police officers opened the flap to the tent where Jentsch and DeMichele were sleeping before issuing them a ticket for camping.
David Harrison, an attorney representing Jentsch and DeMichele, made a motion in court Monday to have the evidence suppressed.
Cooke ruled that prior Colorado cases show a tent is treated the same as a house with regards to privacy rules.
“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. “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.”
Cooke also disagreed with prosecutors who said that because the location of the tents was illegal, the protesters had no expectation of privacy.
“The ultimate issue is not whether the defendant had a ‘property right,’ in the location searched by the police, but whether he had ‘a legitimate expectation of privacy in that location,'” Cooke wrote.
Harrison said the ruling likely means the cases will get dismissed. He said the ruling will probably not significantly affect camping cases in the future but will at least establish more rights for campers.
“It’s kind of case-specific,” he said. “Officers will just eventually learn to act differently, which, of course, is one of the goals.”
The decision followed another ruling Monday in which Cooke said the testimony of a Boulder police sergeant who crouched down and used a flashlight to peer into a tent that was part of Occupy Boulder is not admissible at trial. She said the activities in the tent were not in “open view” and ruled that the sergeant conducted a “probing examination” that violated the occupants’ reasonable expectation of privacy.
Janet Michels, assistant city attorney, said prosecutors plan to appeal that decision. She declined to comment on the ruling regarding Jentsch and DeMichele, saying it was still an open case.
Harrison said motions to suppress evidence in two of the other Occupy Boulder cases were denied. In one case, the tent had a see-through mesh side, while in another case the camper inside opened the tent flap, allowing the officer to see another protester sleeping inside.
Contact Camera Staff Writer Mitchell Byars at 303-473-1329 or byarsm@dailycamera.com.
