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Police entered home before having reason to: attorney

---Party bust case may come down to when search started

Mike Heine/The Week

(Published Dec. 10, 2007, 2:02 p.m.)

When Linn Township police kicked in a door at an underage house party Nov. 4, it wasn't the first time they were inside the home without a warrant that evening, the 17-year-old party host said.

The boy said a police officer knocked on a basement window, which fell open. The officer then put his hand inside to move a curtain before looking in and telling underage partygoers to open the door.

"Clearly the officer was inside the house (then)," said defense attorney Larry Steen, a former police officer who is representing the boy. "That's the beginning of the search, which is interesting legally because they had no probable cause to enter the house at that point. None."

Police kicked in the door because of their community caretaker role. Through the window, officers saw an unresponsive teen lying face down on a bed. They thought he might have been asphyxiating so they called Chief Dennis Wisniewski to authorize gaining entry without a warrant, according to the police report.

"We have an obligation to protect the public," Wisniewski said in an earlier interview. "Certainly, if we have an individual laying on a bed unresponsive, especially face down and knowing alcohol was involved, I would be negligent in my duty if I didn't do something. I'm not going to leave anybody laying there."

The report did not say if the officer moved the curtain himself, or if it was open enough to see inside.

Wisniewski could not clarify what happened.

"At this point in time, per our town attorney, we're not going to have any comments on anything until this is resolved in court," he said. "I'd really like to defend our position, but I can't."

The boy said police didn't kick in the door for at least 90 minutes from seeing the unresponsive male on the bed.

"I just feel the cops used my friend, who was face down on the bed, as a loophole to enter the house," the boy said.

"In a way, they abused that power. If they would have felt he was in danger, they would have came in right away. They wouldn't have waited the hour or two that they did."

Nobody opened the doors to police because they didn't have a warrant to come inside, the boy said.

"A cop reaches into the window and slides the curtain over. I saw him out of the corner of my eye," the host said. "He looks around, sees a bunch of us lying on the floor and said, 'this is the police. Come upstairs and open the door.'

"None of us responded. We didn't feel we had to."

Police issued all 12 of the juveniles at the party $500 obstruction tickets. Ten were cited for underage drinking, a $298 ticket, the host said.

The unresponsive boy police saw was pretending to be asleep. He was not cited for underage drinking, the party's host said.

At least three partygoers are fighting the tickets, Steen said.

The host admitted he had been drinking, but said he wasn't intoxicated. His blood alcohol level was 0.04 percent.

"I can remember everything clearly," he said.

None of the partygoers intended to leave after drinking. Those who did had designated drivers, the boy said.

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