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Administrator's Perspective

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Professor's Perspective

Warrantless Searches of Dorm Rooms

936 N.E.2d 883 (Mass. 2010)

By Richard Fossey

Professor and Mike Moses Endowed Chair in Educational Administration,University of North Texas

and

Kerry Brian Melear

Associate Professor of Higher Education,University of Mississippi

Introduction

College students, like all citizens, have a constitutional right to be free from unreasonable searches and seizures that is guaranteed by the Fourth Amendment. However, court cases interpreting the Fourth Amendment rights of college students are fairly rare, and the United States Supreme Court has issued only one opinion on the Fourth Amendment rights of a college student. In State of Washington v. Chrisman, 455 U.S. 1 (1982), the Court ruled that a warrantless search of a dormitory room by university police did not violate a college student’s Fourth Amendment rights. In that case, a police officer saw evidence of what appeared to be illegal drugs while standing in the dormitory room of a student already under arrest for underage possession of alcohol. The officer had accompanied the student to his room so he could obtain his identification documents, and the Supreme Court concluded that the police officer was lawfully present it the dormitory room when he observed the evidence of drugs, which were in plain view. Chrisman is thus the source of the widely cited “plain view” doctrine associated with police searches.

Like the Chrisman case, most cases involving the Fourth Amendment rights of college students have arisen in the context of a warrantless dormitory search by school officials or police officers that led to criminal charges—often for possession of drugs. Although the cases are not entirely consistent, most courts acknowledge that college students have a constitutional right to privacy in their dormitory rooms, and any search of those rooms for law enforcement purposes must be accompanied by a warrant. Piazzola v. Watkins, 442 F.2d 284, 289 (5th Cir. 1971) (student who occupies a college dormitory room enjoys the protection of the Fourth Amendment). Nevertheless, courts have also ruled that university officials have the authority to enter students’ rooms if they need to do so to perform routine maintenance, address safety concerns, or have some special administrative need not connected to law enforcement. See, e.g., State v. Hunter, 831 P.2d 1033 (Utah Ct. App. 1992).

Of course, students can waive their Fourth Amendment rights and consent to a warrantless search of their dormitory rooms. In Commonwealth v. Carr, 936 N.E.2d 883 (Mass. 2010), the most recent dormitory-search case, the Massachusetts Supreme Judicial Court considered two important questions about a dormitory search at Boston College. First, did the students consent to a search of their room by campus police officers? Second, if they did consent, was their consent truly voluntary?

Commonwealth v. Carr

In February 2007, the Boston College police department received a report from a campus housing administrator that Daniel Carr, a resident of Gonzaga hall, might have a weapon in his dormitory room. Three uniformed officers, all armed, arrived at Carr’s room, accompanied by two Boston College residence hall directors. One of the officers inquired about a weapon, and Carr produced what he described as a “fake gun,” a replica of a .45 caliber pistol. Id. at 886. Carr’s roommate, John Sherman, turned over a folding knife.

Concerned that there might be more weapons in the room, Sergeant Derick, apparently the police officer in charge, expressed a desire to search it. Officers gave Carr and Sherman a two-part form to sign. The top half contained a “Miranda waiver,” and the bottom half contained a consent-to search-authorization. Carr and Sherman both signed the Miranda waiver, but they did not sign the consent-to-search portion of the form.

Officers proceeded to search the young men’s dormitory room and found marijuana, cocaine, and psilocybin mushrooms. Not long after, a grand jury indicted Carr and Sherman for trafficking in cocaine and possession of marijuana and psilocybin with intent to distribute. Id. at 885. Both men filed motions to suppress the evidence that the police had seized during the dormitory room search, arguing that the police had conducted the search without a warrant and without their consent. A Massachusetts trial court granted the motions to suppress, but an intermediate appellate court reversed, concluding that the search was lawful.

In a decision issued in November 2010, Massachusetts’s highest court reversed the intermediate appellate court and suppressed the evidence that the Boston College police had seized. When the police rely on consent to justify a warrantless search, the court ruled, the prosecution has the burden of showing that the consent was “freely and voluntarily given.” Id. at 887. Thus, “[i]f either the officer’s request or the occupant’s response is so ambiguous that we are unable to discern whether the occupant voluntarily consented to [the search], our inquiry will be over and the entry must be deemed unlawful.” Id. at 887 (internal citation omitted).

After reviewing all the relevant testimony about the circumstances of the search, the Massachusetts Supreme Judicial Court agreed with the trial court that the prosecution had not met its burden of showing that Carr and Sherman had consented to a police search of their dormitory room. Clearly, the two men had not consented to the search in writing, although they had been offered the opportunity to do so.

Even if the two students had consented, the Massachusetts high court continued, the prosecution had not met its burden of showing that the consent was voluntary. The court pointed out that Carr and Sherman had been confronted by three armed police officers, two of whom stood in the doorway and blocked their dormitory room’s only exit while two college administrators stood nearby in the hallway. Furthermore, “Sergeant Derick’s pronouncement, ‘I would like to search the room,’ sounded more like an order than a request.” Id. at 890. Under those circumstances, the Massachusetts Supreme Judicial Court agreed with the trial court that “an objective person would not have felt able to refuse the officer’s request or leave the room.” Id.

Conclusion

Commonwealth v. Carr indicates that the mere presence of armed police officers in a college dormitory room weighs against a finding that the occupants’ consent to search the room was voluntarily given. In an earlier case, involving somewhat similar facts, an Illinois court ruled that two roommates had not voluntarily consented to a search of their dormitory room when they were awakened early on a Sunday morning by campus police officers who told the occupants their room would be sealed and the roommates forced to vacate if they did not consent to an immediate warrantless search. People v. Wahlen, 443 N.E.2d 728 (Ill. Ct. App. 1982).

College officials and university law enforcement officers might draw at least one reasonable conclusion from a reading of Commonwealth v. Carr: When armed police officers want to search a college dormitory room, they should first obtain a warrant. Absent a warrant, they should be prepared to substantiate that any consent a student provides is truly voluntary.


Administrator's Perspective

by Robert C. Cloud
Professor of Higher Education
Baylor University

College students, like their younger counterparts in the public schools, “do not shed their constitutional rights at the schoolhouse gate” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969). Consequently, they are protected by the Fourth Amendment from unreasonable searches and seizures. Unreasonable searches are often defined as those conducted without probable cause and a search warrant. Under current case law, students generally have the right to privacy in their dormitory rooms (Piazzola v. Watkins, 442 F.2d 289 (5th Cir. 1971)), although they can waive that right and consent to a warrantless search if they choose to do so. On the other hand, university administrators have the legal authority to enter dormitory rooms when necessary to provide routine maintenance services, protect the safety of students and staff, or perform other oversight duties not related to law enforcement. See State v. Hunter, 831 P.2d 1033 (Utah Ct. App. 1992). Without question, students’ constitutional right to privacy in their dormitory rooms can conflict with administrators’ responsibilities to ensure safety and efficiency on the campus. In Commonwealth v. Carr, 936 N.E.2d 883 (Mass. 2010), the Massachusetts Supreme Judicial Court considered those two conflicting interests.

After receiving a tip that Daniel Carr might have a weapon in his dormitory room, three uniformed and armed Boston College police officers questioned Carr and his roommate, John Sherman, in their dormitory room. Carr and Sherman produced a fake handgun and a folding pocketknife. Based on his experience in law enforcement, Sergeant John Derick, the officer in charge, suspected that there could be more weapons in the room. Since the officers did not have a search warrant, Derick told the defendants he wanted to search the entire room and presented them with a two-part form to sign (Id. at 886). Neither Carr nor Sherman signed the consent-to-search statement on the bottom half of the form (Id. at 886). At that point, the BC police made a serious procedural mistake; they searched the room anyway without a search warrant or the written consent of the student occupants. Officers who searched the room found marijuana, cocaine, and psilocybin mushrooms.

Subsequently, Carr and Sherman were indicted for trafficking in cocaine and possession of two other controlled substances with intent to distribute (Id. at 885). Naturally, both students immediately filed motions to suppress the evidence seized during the room search, arguing that the search was conducted without a warrant and without their consent. On appeal, the Supreme Judicial Court concurred and suppressed the evidence, noting that the state had not proven that Carr and Sherman had “freely and voluntarily” consented to the search (Id. at 887). In the absence of such proof, the search was illegal, and any evidence discovered during the search was inadmissible in court. The Supreme Judicial Court concluded that Sergeant Derick’s statement (“I would like to search the room.”) sounded more like an order than a request and that under the circumstances “an objective person would not have felt able to refuse the officer’s request or to leave the room” (Id. at 890). In the end, it was clear to the Court that Carr and Sherman had not consented to the search, and the procedural error by the BC police had violated defendants’ constitutional rights.

Because of increasing levels of drug abuse and related violence on virtually all postsecondary campuses, administrators are pressed as never before to ensure a safe and wholesome learning environment. They are expected to use proactive and aggressive procedures to protect students and staff, including searches of suspicious persons and places when necessary. Parents, governing boards, and the general public will accept no less. Consequently, the number of campus-based searches is likely to increase as college administrators move to secure their campuses. In Commonwealth v. Carr, the Massachusetts Supreme Judicial Court has reminded university administrators once again that they cannot violate the constitutional rights of students during good faith efforts to ensure safety and enforce the law. Prudent officials who need to search a dormitory room obtain a search warrant before initiating the search. They do not rely on the verbal or written consent of the occupant to justify a warrantless search except in emergency situations, because the prosecution has the ultimate burden of demonstrating that the defendant was not coerced into consenting.

Attorney's Perspective

William E. Thro
University Counsel & Assistant Professor of Constitutional Studies
Christopher Newport University
Newport News, Virginia

From the perspective of a college or university attorney, Massachusetts v. Carr is an unremarkable case and generally irrelevant to the unique legal issues that confront both legal counsel at both public and private institutions. The decision breaks no new ground and fails to enunciate a unique legal standard. While it reaffirms well-settled principles of criminal procedure, it simply offers no real guidance on higher education issues. Indeed, other than the fact that the police officers conducting the search were employees of a private university and the fact that the premises searched happened to be a room in a university owned residence hall, there is no real connection to higher education. Nevertheless, Carr does reiterate two key points.

First, for purposes of the Fourth Amendment and similar state constitutional provisions, a room in a university residence hall is treated the same as an apartment or a hotel room. In other words, the occupants have an expectation of privacy and the right to free from searches. While the occupants may consent to a search by the police, such consent must be freely and unambiguously given.

Second, police officers, even those who may be employed by a private university, are acting under color of state law and, thus, are subject to the restrictions of the National and State Constitutions. In other words, a visit by the campus police to a residence hall is same as a visit by the local police to an apartment or a hotel room.

To be sure, Carr does not address the more intriguing issue—when can administrators, including resident assistants, conduct a search of a residence hall as a means of ensuring compliance with university rules? As private actors are not subject to the Constitutions, private university administrators would seem to have almost carte blanche. In contrast, the conduct of administrators at public institutions is constrained by the Constitutions.


Professor's Perspective

By Lawrence F. Rossow

Professor and Dean
School of Education & Human Development
University of Houston-Victoria
and Emeritus Professor of Education and Law
The University of Oklahoma

Searching students’ dormitory rooms continues to be a developing area of constitutional interest. College students are adults and the setting is not the K-12 campus. Therefore, the long-standing Reasonableness Standard given by the U.S. Supreme Court in New Jersey v. T.L.O. cannot help in guiding the searching process. If it did, college officials would have wide latitude in the search of student housing. On the other hand, the stricter probable cause requirement in criminal procedure for a police search of a citizen may be too high and unnecessary for student life and the college campus. So, what is the search standard for college dormitory rooms?

While not entirely definitive because of jurisdictional limitations, Commonwealth v. Carr provides a status check on where we are headed. Is it important to know the purpose of the search? —yes. Does it matter whether the dormitory room is searched by police or a resident assistant?---yes. Does it matter that the police are part of campus security or state/municipal police —maybe. Does the search method have any bearing on the search event?---yes.

Carr stands for the proposition that why, who and how are variables that must be analyzed before a conclusion can be reached about the constitutionality of any dormitory search. Perhaps in order of importance, the first consideration is to determine the purpose of the search. On most campuses, the student “house rules” or dormitory contract gives fair warning to the student occupants that general safety checks will be conducted. If the search is for routine housekeeping or general maintenance of health and safety the search warrant may not be required. However, the ostensible purpose of the search may be belied if the resident assistant is accompanied by police whether campus of municipal. If police are present then it may be argued that the college intends to discover something criminal. In the end, the least constitutionally offensive searcher is a resident assistant looking for safety/health violations

If police intend to be present then a warrant is called for. In the absence of a warrant, a police conducted room search would need to rely on the standard exceptions to the warrant requirement, among them plain view or consent. The Carr decision focuses our attention on the reliance of consent standard. Boston College had a good idea. Have students sign a Miranda and consent waiver on a form at the beginning of the search. The Supreme Court of Massachusetts noted that what is dispositive in the consent waiver is the “voluntariness” of the consent. The use of consent forms my help in establishing the presence of consent. However, as the court did here in Carr, it looked at the totality of circumstances surrounding the search event. The searchers did not thoroughly explain the waivers to the students. Perhaps more importantly the facts do not show that the searchers sought to make sure the students understood that they had the right to refuse the waiver.

In the end, the teaching point is as follows: Send residents assistants to dormitory rooms to conduct routine health and safety inspections. If contraband is uncovered in the process, turn that evidence over to the police at their police house or security station. If the college has reliable information that a dormitory room contains contraband, let the police search with a warrant. Without a warrant, police will have to ensure that students voluntarily consent to the search. The presence of voluntariness will exist if it can be shown that students knew the meaning of consent and fully understood that they were waiving the rights.