Attorney challenges constitutionality of city ordinance

By Chris Baldus, cbaldus@charlescitypress.com

What began as a dozen Charles City teens cited for underage drinking accusing police of violating their constitutional rights is poised to become a constitutional challenge of the city’s noise ordinance.

The attorney for 12 accused underage drinkers filed a motion Friday seeking dismissal of the cases “due to the unconstitutional nature” of Charles City’s noise ordinance.

The Floyd County Magistrate Court conducted a hearing Friday on an earlier motion to suppress evidence of underage drinking claiming it was illegally obtained. The court did not take action Friday on either the motion after a day of witness testimony on the first motion. The attorneys for both sides need to submit their closing arguments  in writing in that matter before Magistrate Judge Leslie Dalen makes a ruling.

Attorney Judith O’Donohue is representing the 12 teenagers who were cited for underage drinking when Charles City Police allegedly responding to a noise complaint broke up a party in late July  in the 600 block of 16th Avenue. The teens are all facing simple misdemeanor charges of possession or consumption of alcohol by a minor.

One Charles City High School graduate from Colwell — who has since turned 21 years old —  pleaded guilty to minor consumption of alcohol and accepted his sentence immediately: a $65 fine plus a statutory 35 percent surcharge.

In her new motion, O’Donohue argues that the city’s noise ordinance is too vague. Its overbreadth violates the Due Process Clause as well as the First Amendment, she argues. She quoted the ordinance in that it is disorderly conduct for anyone to “make loud and raucous noise in the vicinity of any residence or public building which causes unreasonable distress to the occupants thereof.”

She argues: “The ordinance allows for discriminatory application to individuals allegedly making loud and raucous noise in the vicinity of any residence and also does not give fair notice to people who might be violating the ordinance as to whether their conduct would be violative of the ordinance or not.”

Friday’s hearing focused on O’Donohue’s motion claiming the police department sent officers to the residence on a false claim of a noise complaint, damaged the house to gain access without a search warrant and conducted preliminary breath tests without consent or probable cause.

The narrative arising from the testimony Friday is one that has the teenagers gathering July 30, 2016, at the house in the 600 block of 16th Avenue first in the garage and then moving inside the dark house and into its basement when other teens driving to the gathering warned them about police outside.

The parents of the teens hosting the gathering were not home at the time.

Police officers, who received the call shortly after 11 p.m., stopped two teens in the backyard and knocked or pounded on doors and called out to the teens but did not get any response from those inside. Eventually, an officer used a pocket knife to pop a screen off a basement window, enter the house and unlocked a door to let other officers in. They found the teens in the basement.

On the witness stand, the officer in charge that night defended entering the house without a warrant because underage consumption was occurring and the safety of the teens was at risk. He said he’d been to many parties where underage drinkers — sometime passed out — required medical attention.

While the teenagers were on the stand, Assistant County Attorney Randall Tilton in various ways asked them whether they had been drinking. Dalen upheld objections from O’Donohue in most of those cases.

Tilton was allowed to ask one of the host teens whether he was too intoxicated to recall the events of the night accurately, the teen said “No.”

When Tilton asked one of the host teens about alcohol containers found by police inside the house, the boy said his father enjoys beer.

The father and co-owner of the house, testified that police left dents on two doors and blood splatter on one.

The two teens who were stopped by police in the backyard testified that a beer can also in the back yard did not belong to either of them.

All of the teenagers cited had blood alcohol content readings between 0.003 and 0.65, according to court records. This is among the evidence O’Donohue is trying to suppress.

The teens were not administered Miranda warnings and did not voluntarily waive rights to counsel and against self-incrimination,” her suppression motion claims.

“Any statements, videotapes and photographs taken in the course of the illegal search of the residence and seizure of the preliminary breath test results was obtained contrary to the Fourth, Fifth and Sixth Amendments to the United States Constitution and the equivalent rights in the Iowa Constitution,” O’Donohoe wrote.

Most of the defendants are graduates of Charles City High School.

The Press is not at this point publishing the names of the accused, which are public information, because it does not normally report on the progress of simple misdemeanor cases.

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