Tuesday, March 23, 2004 | 10:52 a.m.
Constitutional rights and a zero-tolerance policy on controlled substances were placed at odds during a student hearing at the University of Nevada, Las Vegas, on Monday afternoon.
A UNLV freshman who was evicted from her dorm room, her attorney and the executive director of the state American Civil Liberties Union say they are outraged by the university's actions.
Freshman Rikki Bray and a fellow dorm resident were evicted without a hearing because they were in the room when another student was arrested on a charge of marijuana possession Feb. 3. Bray, who now lives with a cousin, challenged her eviction in the Monday hearing.
Bray argued that she had broken no law and had no obligation to open the door of her neighbor's room when police knocked, so she should not have been evicted.
Campus police testified that while Bray had rights as a dorm resident, she should have opened the door when they requested entrance. They said they suspected evidence was being destroyed and she should have intervened or left, but they did not have evidence of that allegation.
"It's a phenomenal injustice," said Sarah Bray of Henderson, the cousin who took in Bray, who also attends UNLV.
The evictions are legal under the campus housing policy because of a zero-tolerance policy against controlled substances, Phillip Burns, student judicial affairs officer, said. Any student involved in any way in a controlled substance issue is subject to temporary removal from the residence halls until a hearing can take place.
But Gary Peck, executive director of the state ACLU, said a zero-tolerance policy should not "trump" an individual's constitutional rights.
"This is a perfect case in point that zero-tolerance policies are zero intelligence policies that lead to ridiculous decisions and often decisions that lead to a total violation of a person's constitutional rights," Peck said.
Bray, an 18-year-old marketing major from Alaska, said she and Herlin, 19, a business marketing major from Chicago, were just checking in on a neighbor when police came to the door on suspicion of marijuana use. The neighbor, Eric Chan, 19, refused to open the door and invoked his Fourth Amendment right to "unreasonable searches and seizures," a right also guaranteed in the student housing contract except in cases of a health emergency.
Bray and Herlin were caught in the middle. Oblivious to any wrongdoing, both said they followed Chan's instructions to stay in the room and not open either the front or bathroom door.
When campus police managed to talk Chan's roommate into opening the door more than 30 minutes later, they arrested Chan for being under the influence of a controlled substance and for being in possession of a controlled substance.
Chan has a hearing July 16 in Las Vegas Justice Court on the charge of possession of a controlled substance, court records show. The other charge has been dropped.
University police officers Josh Taylor and Derik Lewis both testified that they found empty bags rimmed with marijuana and the end of a marijuana joint and that the room smelled of marijuana.
They did not find that either Bray or Herlin had smoked marijuana and did not cite either for possession of drugs or for violating any other state or university codes.
But those charges appeared on eviction notices both students received the next morning, giving them 72 hours to leave the residence halls or be cited for trespassing, Bray and Herlin said.
The university also refused to refund the students the money they paid for their rooms and froze their student records. Bray said she would have had to drop out of school if her cousin had not taken her in. A Dean's List student, Bray is now worried she may lose a scholarship she received as an Alaskan native because she cannot send in the required transcripts until her records are unfrozen.
Herlin said his parents helped him rent an apartment in Henderson.
The university police officers testified Monday that they believed Bray obstructed justice by staying in the room after police repeatedly knocked on the door and announced why they were there. Both Taylor and Lewis alleged Bray was present when evidence was possibly being destroyed, which Bray adamantly denied.
"I didn't see anyone do anything to destroy drugs," Bray said, adding that all she could smell in the room was Chan's air freshener.
Bray said she was scared and, although she wanted to leave, she did not think she had a right to open the door and let police into someone else's home.
Bray and Herlin both said they had gone down to Chan's room out of curiosity because residential advisers had stopped there and then left.
"We were in the wrong place at the wrong time," Herlin said outside the hearing, adding that he would have left if he had any indication there were drugs in the room. "We were nosy teenagers trying to find out what was going on."
University police may not enter a student's room without permission unless there is a health emergency, both Taylor and Bray said. But the officers disagreed on whether Bray or Herlin were legally obligated to open the door. Taylor testified that she wasn't obligated, but should have opened the door anyway.
Lewis said she had "no standing" because it was not her room and that she obstructed justice by not opening the door.
"In the domicile of another you cannot refuse entry," Lewis said, raising the ire of Peck and Bray's attorney, Jason Bach.
Lewis also told the hearing committee he still had a year to cite Bray for obstruction, which Bach and Peck said was a threat.
But Burns, the judicial administrator who oversaw the four-member hearing panel that included faculty, staff and one student, said the issue was not that she did not open the door but that she did not leave the room when police said they were there on suspicion of marijuana.
Burns stressed that the hearing was an "educational process" to help Bray learn from the situation. Peck countered that the only education Bray received was that her "constitutional rights don't matter."
The hearing panel will decide whether Bray is responsible for the charges and, if so, will recommend possible sanctions for Bray to Rebecca Mills, vice president for student life, within the next 10 days. Herlin does not have a hearing scheduled yet.
Bray, who plans to leave UNLV after next year, said she and Herlin have been punished already for something they didn't do.
"I don't believe that what I did was wrong," Bray said after the hearing. "I learned how the UNLV judicial process works and I learned how it is flawed."