Survival Tips for Dorm Residents and Resident Assistants

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ROOM SEARCHES: (Not Without a Warrant or Consent)

Your Room is Your Castle…Sort Of…

Ohio Law and the United States Constitution protects the rights of students living in dormitories. As such you have the right to close your doors, and to keep them closed unless you are presented with a search warrant. You are not required to open your door to discuss “matters” with police officers, resident directors, or resident assistants. However, EXERCISING YOUR RIGHTS MAY HAVE A PRICE.

Judiciary Sanctions — The Ohio University Student Code of Conduct considers it a Code B Offense ( “carrying a maximum sanction of disciplinary probation, or any sanction not less than a reprimand”), for a student to “fail to comply” with the directions of “university officials” or police. It is also a violation to fail to identify yourself.

Thus, a student may lawfully refuse admittance to his room, or to answer questions, but may find that charges have been filed against him/her with Judiciaries.

Usually, there must be some real evidence of misconduct on the part of a student, for a resident assistant or police officer to pursue the matter. It is not unusual for the officer to justify his demand for entry upon the basis that he smells marijuana, or has heard the popping of cans. This may give him “a reason to investigate,” but it certainly does not give him “probable cause” to obtain a search warrant.

The student must therefore make this choice: “Do I open my door, and consent to the officer searching my room—and perhaps finding the beer or pot?” If so, you will most likely be given a criminal complaint as well as a more serious judiciary charge.

The criminal complaint, if I have given consent to search, will no doubt result in having to pay court costs, several hundred dollars in fines or fees, and possibly have a conviction on my record. Since you will not be able to have a lawyer at the time, you will have to make the choice. What should you do?

PLEASE NOTE: If a Police Officer or R.A. enters your room without permission, in order to search for contraband (i.e. “investigate”), it is an illegal search and you should contact an attorney to have the criminal charges thrown out.
(You may still face Judiciaries since this kind of charge is considered “civil” and not criminal, and therefore your 4th Amendment Rights may not protect you there.)

IT IS ALWAYS BEST TO HAVE WITNESSES WHO CAN VERIFY THAT YOU DID OR DID NOT GIVE CONSENT FOR THE POLICE TO ENTER YOUR ROOM.

SOMETIMES, Police Officers or Resident Assistants will walk by and claim that they saw an illegality occurring through a “partially opened door.” The same rules apply. If the Officer claims he/she has the right to enter because he/she saw the beer cans on your desk (example) and that this is “EXIGENT CIRCUMSTANCES,” which gives him/her the right to enter your room—HE/SHE IS WRONG…. THE OFFICER MUST STILL HAVE A WARRANT OR YOUR CONSENT TO ENTER. WITHOUT EITHER OF THESE, THE EVIDENCE IN A CRIMINAL CASE SHOULD BE THROWN OUT. (Note, as mentioned above, you can still face Judiciaries). TALK TO YOUR LAWYER IF THIS HAPPENS.

Obstruction Charges — Sometimes a Police Officer will threaten to charge you with “obstruction of justice” unless you open your door (so that they can see the evidence), to “talk” to you. REMEMBER, THEY CAN CHARGE YOU WITH ANYTHING, BUT IT IS NOT “OBSTRUCTION” TO REFUSE TO OPEN YOUR DOOR, UNLESS THEY HAVE A WARRANT. (Obstruction usually requires that you do an act—such as tripping an officer chasing a suspect—not that you refuse to do an act, such as opening your door, i.e. “waiving your constitutional rights.”)

PLEASE NOTE: POLICE OFFICERS HAVE DIFFERENT APPROACHES TO PROBLEMS. SOME OFFICERS WILL MERELY CONFISCATE OR DESTROY THE EVIDENCE (i.e. “empty the beer”). MOST WILL STILL REPORT THE INCIDENT AND REFER YOU TO JUDICIARIES.

“SOME OF THEM,” MAY NOT FILE CRIMINAL CHARGES AGAINST YOU FOR ‘UNDERAGE POSSESSION OF ALCOHOL,’ IF YOU COOPERATE WITH THEM.

HOW DO YOU KNOW WHAT THEY WILL DO?

Try asking them, without incriminating yourself. “Officer, if I were to open the door, and if you did find alcohol (i.e. “pot”), what would you do?”

If he/she refuses to give you a straight answer, you might want to require that he/she obtain a warrant. If he/she agrees not to file criminal charges, and then lies to you, he/she will run the risk that you will spread the news that he/she cannot be trusted. (An Officer’s reputation for honesty is important.) It’s a close one.

REMEMBER:

NOTE FOR RESIDENT ASSISTANTS: If you note a violation of University Policy regarding alcohol in dorms, what is your obligation? If the “offenders” cooperate with you and empty the beer, are you required to notify campus security? If so, do you know if criminal charges will be filed against the residents? If you are not required to do so, and you do notify security, will you be impairing your ability to deal with residents in the future? You might want to discuss this with your R.D., and your residents.

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DETERMINING IDENTITY AND AGE: (The right to question suspects)

The United States Supreme Court has ruled that persons are required to “identify” themselves upon request of a police officer. In addition, the Code of Student Conduct requires that students provide their identity to police or university officials (i.e. resident assistants) upon request.

Usually the law does not require that you produce an ID, if you have told the officer your name and address, and have some way to corroborate it. You should probably offer up your OU ID since it has neither social security number nor birth date on it. The law does not require that you reveal your birth date, age or social security number, if you have identified yourself already.

Note: University Police tell us that they will be able to trace your birth date from just a name. If you do not provide an ID, you will probably be charged with a Judiciary violation.

In the matter of a criminal charge, if you have given the officer your name, and not your age, can he arrest you for “underage drinking” ? (Remember, anyone can be arrested for anything. The question is whether they can convict you).

You have the right to remain silent, and not to incriminate yourself. You have the right to refuse to answer whether
you’ve been drinking. You have the right to ask the officer whether you can leave, once you’ve given him/her your
name.

If you are forced to remain there while he “checks” on you, it may be construed as an “illegal search and seizure.” If so, the evidence against you in the criminal case can be thrown out. (It really depends upon how “intrusive” the “holding” is ask immediately if you can leave. The longer they make you wait, the more likely it is that you’ve been “seized”).

REMEMBER: YOU WILL STILL HAVE TO FACE JUDICIARIES.

THE POLICY OF PARTICULAR POLICE OFFICERS MAY VARY WITH THEIR INDIVIDUAL ATTITUDES AS TO HOW DRUNK YOU ARE, WHETHER YOU’VE BEEN IN TROUBLE BEFORE, AND WHETHER YOU’VE COOPERATED WITH THEM (See above notes). DO NOT EXPECT LENIENCY. (But it can be a nice surprise.)

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SEARCHING THE PACK

Does a Resident Assistant or Police Officer have the right to search your backpack? Like any other search, if you give permission, Yes.

If you do not give permission, they may search it anyway. Chances are that the criminal charges can be thrown out, regardless of whether it was a police officer or a resident assistant who searched it. Talk to your lawyer. You will probably face Judiciary charges if you refuse to allow it to be searched, or if it is searched and they find something.

REMEMBER: IF YOU ARE ALREADY UNDER ARREST FOR SOMETHING (i.e. “disorderly conduct” or “underage drinking” they can search you and probably your bag or purse. Do not consent, BUT DO NOT RESIST. Talk to your lawyer).

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UNDERSTANDING THE LAW & THE RATIONALE OF “IN LOCO PARENTIS”

While the law concerning the drinking age, and University policy may seem unfair to a dorm resident, it is best to understand that Policy is often a result of potential liability. University Officials may be monetarily liable for the actions of “underage students,” particularly if those actions are the result of illegal activity in the dorms. Remember the University does not make the law but is required to enforce it.

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UNDERAGE DRINKING & DUI

Ohio Law currently prohibits anyone under 21 years of age to consume, possess or “be under the influence of alcohol in a public place”. Those persons who face criminal charges for a first time violation can often apply to the Court for admission into a DIVERSION PROGRAM. This method often results in a Fee ($150 currently), community service, attendance of an alcohol abuse seminar, and court costs to be paid up front (Total costs are about $270), in order to get the charge dismissed. (To seal it is an additional $25 charge).

A second time offender does not have the right to do Diversion.

Ohio Law provides substantial penalties for Driving Under the Influence.

A lower test score of .02 is all that is required to convict of “underage DUI – OMVI”. For most students, that limit may be 1 to 2 beers.

A CONVICTION FOR DRUNKEN DRIVING CAN HAVE SUBSTANTIAL NEGATIVE IMPACT UPON YOUR FUTURE.
IT IS HIGHLY RECOMMENDED BY THE CENTER FOR STUDENT ADVOCACY THAT YOU DO NOT DRINK AND DRIVE WHILE IN ATHENS.

Although a suspect has the right to refuse to take “any tests” in regards to being stopped for a traffic violation, as of September 2004, a “refusal” to take a breath or urine test as requested by a police officer can result in “double penalties” IF CONVICTED.

If you refuse to perform any tests, the Police still have the right to charge you with DUI, but the Prosecutor must be able to prove that your condition was impaired by the use of alcohol or drugs.

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POSSESSION OF MARIJUANA OR DRUG PARAPHERNALIA

If you are convicted of possession of marijuana or drug paraphernalia in Ohio, you face fines, jail (usually suspended), and a driver’s license suspension (with reinstatement fees and increased insurance costs). You may also lose your right to Federal financial aid (contact us about that). You may also face Judiciary charges, even if it happened off campus. (With many other drugs, regardless of amounts, you can face Felony charges). To be convicted, they must show that you KNEW you had possession of the drug or item. WE URGE YOU TO ALWAYS CONTACT YOUR LAWYER BEFORE ENTERING A GUILTY PLEA TO A DRUG CHARGE.

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FAKE IDs

It is illegal in Ohio for a person to carry a “fake” ID, or a valid ID which has been modified. It is NOT illegal for a student to have someone else’s ID in his/her possession UNLESS he/she uses it. That means that unless you are caught using it or ADMIT to using it, (although you may be charged by the police with a fake ID), it is unlikely that you could be convicted.

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FURNISHING ALCOHOL TO MINORS

Ohio law provides substantial penalties, including a mandatory $500 fine for anyone who furnishes alcohol to a minor. Due to the large penalty, we suggest that suspects exercise their right to remain silent.

Note: There are a large number of undercover liquor control agents and police in Athens, who wait inside or outside carryouts. They are looking for youthful appearing persons, who may or may not hand money to a person who buys alcohol. They will often follow your car, and wait for you to unload the beer.

If they see a person who did not buy the beer carrying the bag, or see someone handing money back or forth, they will try to interrogate him/her to find out his/her age. They will usually charge both persons with criminal conduct.

CSLS encourages students who face such a situation to exercise their constitutional right to remain silent and not to incriminate yourself.

(SEE THE CSLS HANDOUT “SURVIVAL TIPS FOR COURT STREET.”)

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To obtain this web page in booklet form, pick up a copy at the CSLS office.