UNIVERSITY OF MONTANA STUDENTS TOLD RIGHTS NEED TO BE ASSERTED

"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrant shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing
the place to be searched, and the person or things to be seized."

. Fourth Amendment, U.S. Constitution

Can citizens just say "no" to police searches, or should they consent
to an officer's request?

"I can't think of a good reason to give an officer consent to search
anything," said Andrew King-Ries, a criminal law professor at the
University of Montana. "There is no good reason to say 'yes.' "

But that's no safeguard against being detained, arrested and even
charged with a crime, he reminded about 80 students and community
members at the University Center Theatre last week.

Is the odor of marijuana coming from a dorm room considered "probable cause?"

Actually, in legal parlance, it's considered "reasonable suspicion."

"Reasonable suspicion is all a cop needs to stop you and ask you
questions," said Assistant U.S. Attorney Josh Van de Wetering, who's
also an adjunct law professor at UM.

"If we smell an odor, we've got a reason to be there, we've got a
reason to ask," said Jim Lemcke, UM's director of public safety.

And if a resident doesn't answer the door, or asserts the right to
demand a search warrant?

The officer will probably turn the matter over to an administrator,
who might issue a student conduct code violation.

On the other hand, if authorities have reason to believe the resident
is involved in the sale of larger amounts of marijuana, the smell of
burning dope lingering outside a dorm room could bolster an officer's
application for a search warrant.

"But generally we're talking about smaller cases," Lemcke said.
"We're talking about smoke wafting down the hall because the towel in
the door and the fan in the window didn't do the trick."

And so went the "Know Your Rights" panel discussion last Wednesday
night, when students and community members posed questions about
their constitutional rights, and five experts offered their varied
interpretations.

Hosted by Brett Schandelson, a third-year law student and American
Civil Liberties Union board member, the open forum was an opportunity
for students to discuss the law with legal professionals, and learn
more about their rights on and off campus. The event was organized by
the Associated Students of the University of Montana, the law
school's chapter of the ACLU and a Missoula community-based group
called Citizens for Responsible Crime Policy.

"Many students on campus are unaware of their rights and how to
protect and retain them in legal situations," said Tara Ness, vice
president of ASUM. "We're not here to tell students how to stick it
to the man or get away with breaking the law. This is meant to be an
educational forum so everyone knows their rights, limitations and
consequences."

An array of resources also was available to students on card tables
outside the UC Theatre, such as "Know Your Rights" cards and
pocket-size copies of the U.S. Constitution.

While a few students were mainly interested in learning how to get
high in their dorm rooms with impunity, others asked questions aimed
at clarifying the gray areas of the law.

Panelist Betsy Griffing, legal director for the Montana chapter of
ACLU and an adjunct law professor at UM, took a shot at explaining
the federal "open fields doctrine" and "curtilage" - legal terms used
to evaluate claims of unreasonable search by the government, in
violation of the Fourth Amendment of the U.S. Constitution.

Under the federal open fields doctrine, the privacy protections
afforded a person under the Fourth Amendment - "the right of the
people to be secure in their persons, houses, papers, and effects" -
don't extend to open fields where, say, a patch of marijuana is being
cultivated. However, under state law, the curtilage, or outdoor area
immediately surrounding the home, is protected.

Courts have historically treated this area as an extension of the
house and, as such, subject to the same Fourth Amendment privacy
protections afforded a person's home.

That means a state law enforcement agency needs a warrant to
investigate the pot patch, while a federal agency can simply go and
have a look-see.

And keep in mind, federal law trumps state law.

"If the marijuana patch is big enough, Montana state law will not
protect you," Van de Wetering said.

So how big is big enough?

"I don't want to prosecute someone who's growing six plants. I want
to prosecute drug-trafficking organizations," Van de Wetering said.

Craig Shannon, a criminal defense attorney in Missoula, stressed the
importance of finding the wherewithal to assert your rights, even
during confrontations with authorities.

"Forewarned is forearmed," Shannon said. "The government is not
always going to look out for your best interests. But be polite."

Lemcke acknowledged a pervasive "us-versus-them" mentality in today's
police forces, and advocated stronger communication channels between
officers and the citizens they're sworn to protect.

He said the opportunity to use less-than-lethal force, like pepper
spray and Tasers, is too convenient and has become a substitute for
simple communication and discussion.

"I'm proud of the fact that I've never been punched and I've never
punched anyone," Lemcke said. "It's because I've been polite."

It helps that Montana has one of the most progressive state
constitutions in the country, Griffing said, adding that most
citizens will be affected by the parameters of state laws more often
than federal.

"The federal constitution sets a baseline for our rights, but the
state constitution allows for broader tests," she said.