- The Washington Times - Thursday, September 2, 2004

Criminals hiding from the law once sought refuge in churches, but in Montana, bathrooms are now a private hide-out from the police.

The Montana Supreme Court ruled 6-1 on Tuesday that Dillon City Police Officer Don Guiberson had no business going into a residential bathroom without knocking or asking permission.

On Oct. 19, 2001, police were called to an apartment on a noise complaint and possible marijuana use when they found a party in progress.

Officers were allowed inside — though not by the tenant — and Officer Guiberson said he opened the bathroom door after hearing “pretty loud” vomiting and saw 18-year-old Rebekah Smith on her knees with her head over the toilet. He said he could smell alcohol.

“You could hear the heaving and whatnot, so I figured someone was probably in need of some help or something,” Officer Guiberson testified.

Miss Smith was charged and found guilty of underage possession of alcohol and fined $100. She appealed the case on May 1, 2003. The state supreme court determined that her right to privacy had been violated, suppressed the evidence and overturned the conviction.

“By entering the bathroom and closing the door behind her, Smith had a legitimate expectation that her activities would be private and that no unauthorized persons would enter,” the court wrote. “This expectation was reasonable, given the personal and private nature of one’s unusual activities within a bathroom.”

The state of Montana argued that Officer Guiberson’s entry into the bathroom was justified under the “community caretaker doctrine,” which allows officers to investigate situations to ensure public safety.

However, Miss Smith’s attorneys said the circumstances were not at a level of belief that she was experiencing a life-threatening illness or in need of immediate assistance. The court agreed.

“Guiberson could have asked the other occupants of the apartment about the situation, or knocked on the bathroom door and inquired,” the court said.

Justice John Warner agreed that Miss Smith has a “reasonable expectation of privacy” in the bathroom, but he wrote in his dissension that the officer was right to investigate.

“If he had not done so, and had she suffered any injury from alcohol consumption, he probably would have been sued,” he wrote.

“I must confess I am a bit mystified by the court’s decision Guiberson violated Smith’s right to privacy under these circumstances. One can only hope that some youngster is not injured as a result of the new rule that house-party participants should immediately go into the bathroom and close the door when the party is busted, because cops cannot come in, at least for a while,” the justice added.

The other judges discounted Justice Warner’s concerns and said the decision does not establish a “bust-free zone to which partyers can retreat to avoid police contact.”

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