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Professional Perspective, Audience, and Topic

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Professional Perspective, Audience, and Topic

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Purpose and Topic:
This Padlet is about search and seizure in college residence halls. This Padlet provides information about federal and state laws and views in relation to search and seizure in college residence halls. It was created to educate students who plan to live on campus about search and seizure laws and local administrative policies at the University of Texas at Arlington.

About the Author:
Chelsey works in higher education as an undergraduate academic advisor at the University of Texas at Arlington. She is on track to receive a Master's of Education in Guidance and Counseling by the end of Fall 2020 from Angelo State University. She plans to continue her career in higher education and eventually move to student affairs. She is most interested in working with University Housing and Residence Life. Her interest in University Housing and Residence Life influenced her choice to focus on Search and Seizure in Residence Halls.

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Summary and Importance:
There are unique laws, policies, and privacy rights that apply to college students who reside on college campuses. Like all citizens, college students have a constitutional right to be free from unreasonable searches and seizures that is guaranteed by the Fourth Amendment. However, college students living in university housing have a lesser amount of privacy rights than tenants living in regular rental properties. The amount of privacy a student has depends on the specific college's housing policy. Thus, it is important that college students are aware of their rights, when their place of residence can be searched, and  the laws surrounding searches.

Emerging Issue:
An emerging issue is that there may be more privacy protections for college students who live on campus.  After the ruling in the United States v. Jones case (2012), the court ruled that a "search" is when officials attempt to find something or obtain information. Thus, college students are protected by the Fourth Amendment if officials attempt to find something or obtain information without a warrant (Kloster, 2012).

Kloster, A. (2012, January 27). Supreme Court Decision in ‘Jones’ and Students’ Fourth Amendment Rights. Retrieved from https://www.thefire.org/supreme-court-decision-in-jones-and-students-fourth-amendment-rights/

United States v. Jones, 565 U.S. 400 (2012)

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This Monday, the Supreme Court of the United States issued its decision in United States v. Jones (PDF). There has been ample discussion of the decision around the blogosphere. Essentially, the majority opinion, penned by Justice Scalia, holds that a "search" for Fourth Amendment purposes occurs either when the test from Katz v. United States, 389 U.S. 347 (1967) is satisfied ("government conduct violates a subjective expectation of privacy and an objective reasonable expectation of privacy") or when the government trespasses in one of the categories listed in the Fourth Amendment ("persons, houses, papers, or effects") in an "attempt to find something or to obtain information."

This is an important ruling because determining whether a "search" has occurred is a threshold question in assessing whether the Fourth Amendment, which holds that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," is applicable: where there is no search, there is no Fourth Amendment question, and no need for a warrant. As such, the Court's decision in Jones is an interesting one, and it is worth considering how Jones might affect the rights of students.

The majority opinion notes that in the latter half of the twentieth century, the traditional Fourth Amendment / trespass nexus gave way to an overriding concern with the Katz test. A large number of cases involving the Fourth Amendment rights of students in their dormitories occurred during this interregnum, with courts typically finding that a student's Fourth Amendment rights were only triggered when a student's subjective and objective "expectation of privacy" had been violated by the search in question.

Not so anymore. Under Justice Scalia's majority opinion, "trespass" by government actors (including, for example, police and public university campus security, administrators, and resident assistants) also count as "searches" when undertaken for "the purpose of obtaining information," and therefore also implicate the Fourth Amendment.

So what might this mean for student rights? For one, there are instances where a student might have little reasonable expectation of privacy, and yet still be protected against government search by the Fourth Amendment. For example, if a student at a public university leaves a stack of papers in the library, he or she likely has no "reasonable expectation of privacy" as to those papers under either prong of the Katz test. But if a campus security officer who has been monitoring the student rifles through the papers and notes that the tenth page contains records of drug sales, that officer may have trespassed-and thus, under Jones, has arguably conducted an unlawful search for Fourth Amendment purposes. (Of course, this depends on the majority opinion's understanding of what constitutes "trespass," and the debate on this point is already well underway.) Evidence secured by unlawful search is inadmissible in court, and there is a good argument that it should not be allowed in college disciplinary proceedings, either.

Previously, the Fourth Amendment has been successfully invoked to exclude evidence obtained via warrantless searches in cases involving student dormitories. For example, in Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971), the United States Court of Appeals for the Fifth Circuit affirmed a lower court habeas action releasing students who had stored marijuana in their dormitories on Fourth Amendment grounds, noting that "[a] student who occupies a college dormitory room enjoys the protection of U.S. Const. amend. IV," finding that "[a] dormitory room is analogous to an apartment or a hotel room." Similarly, in State v. Houvener, 186 P.3d 370 (Wash. Ct. App. 2008), the Washington Court of Appeals dismissed a burglary charge against a student where evidence was seized from the common area of a dormitory because the student had a reasonable expectation of privacy in those areas. While these and other cases are couched in the "reasonable expectation" language of Katz, they may now also be justified on Jones trespassory grounds. Universities should be on notice that under Jones, lack of a "reasonable expectation of privacy" alone does not strip a student of his or her Fourth Amendment rights.

Moreover, courts have found that provisions in student housing contracts reserving a school's right to search dorm rooms are not always sufficient to render such searches lawful. For an interesting discussion of this point, see this 1994 advisory memorandum from the office of the Attorney General of Georgia.

Perhaps as interesting as the explicit holding is the dicta of Justice Sotomayor, whose concurring opinion represents the most privacy-friendly opinion in Jones. Justice Sotomayor agrees with the majority that a "search" is that which satisfies either the Katz test or the traditional trespassory test. However, Justice Sotomayor pens her concurrence to highlight her agreement with Justice Alito's separate concurrence, which argues that new technologies may render the trespassory test a dead letter. Justice Sotomayor writes:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the "tradeoff" of privacy for convenience "worthwhile," or come to accept this "diminution of privacy" as "inevitable," post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) ("Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes"); see also Katz, 389 U. S., at 351-352 ("[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected").

In the future, if Justice Sotomayor's desired "reconsideration" of secrecy as a prerequisite to privacy comes to fruition, the Supreme Court may begin to carve out space for privacy even when the subject of a search is otherwise publicly accessible or quasi-public. This would have interesting implications for postings online; many abuses at public universities might be effectively quashed.

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Supreme Court Decision in 'Jones' and Students' Fourth Amendment Rights - FIRE

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This Monday, the Supreme Court of the United States issued its decision in United States v. Jones (PDF). There has been ample discussion of the decision around the blogosphere. Essentially, the majority opinion, penned by Justice Scalia, holds that a "search" for Fourth Amendment purposes occurs either when the test from Katz v.

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The National Youth Rights Association (NYRA) provides information about the Fourth

Amendment of the United States Constitution and how it grants students rights against unreasonable searches. NYRA advocates for students to retain Fourth Amendment rights in and out of school (Mandal, 2018).

Mandal, S. (2018, October 11). Search and Seizure. Retrieved from https://www.youthrights.org/issues/student-rights/search-and-seizure/

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Like searches, the seizure, or confiscation, of personal property is limited by the Fourth Amendment. Despite this, nearly every school has a policy of taking certain items belonging to students. Most commonly, this includes cell phones, but school have confiscated anything from stuffed animals to permanent markers. Unfortunately, this practice is rarely challenged even though taking someone's property without their permission or without reasonable cause violates their property rights. In some cases, schools will even charge a fee for returning the item, and collect thousands of dollars each year. Schools may also not return items to the student at all, yet students do not have any legal recourse if the school loses students' property after it is confiscated. Unless students are breaking the law or infringing on another's right to education, students should be allowed to retain all personal items.

Are School Searches Legal?

When courts try to determine whether a school search violates the Fourth Amendment they consider a variety of factors:

1. The evidence for the search: In most cases, the school must be able to state specifically what they are looking for and have a good reason for believing they will find it in the place they are looking. Unfortunately, what determines a "good" reason is not always clear.

2. The item being looked for: In general, the more dangerous an item is, the more invasive courts will allow a search to be.

3. What is being searched: Depending on whether the school is searching your locker, your backpack, or under your clothes, it needs to comply with different requirements.

4. The person doing the search: Different rules apply to the search depending on whether it is conducted by a teacher or principal, a school resource officer, or a police officer.

The evidence for the search

Courts have determined the legality of searches using three different criteria:

Probable cause: This is the highest standard required for a search and requires the police to have sufficient evidence that you committed a crime and that there is a substantial chance that they will find evidence of that crime by searching you or your belongings. However, school officials do not need probable cause in order to search you or your belongings at school. In fact, even police officers are rarely required to have probable cause if they are working on behalf of the school. They can use the much weaker standard of reasonable suspicion.

Reasonable suspicion: This is the usual standard used for any kind of search conducted against students at school. Reasonable suspicion does not require a search warrant and only requires that a police officer show that it was reasonable to believe that a search could turn up evidence of a crime, based on facts. Normally, this standard can only be used in a few circumstances, such as during arrest or if you are being frisked for weapons.

Suspicionless or random searches: In a few situations, neither reasonable suspicion nor probable cause is required for a search. Outside of schools, the courts have only allowed random searches in specific circumstances such as at airports and international borders, in circumstances where there are elevated risks or national security interests at stake. However, the US Supreme Court has ruled that many types of random searches are constitutional when performed against students on school campuses, even though there are no elevated risks or national security interests at stake.

What is being searched

In general, the more intrusive a search is, the more evidence will be required to justify it. This basically means that the school must have a stronger reason for a searching your body than for searching your belongings and they must have a stronger reason for searching your belongings than for searching your locker.

Strip searches

A strip search is one of the most invasive searches performed at school and it is often conducted illegally. In the case of Safford Unified School District v. Redding (US Supreme Court, 2009), an eighth grade student, Savana Redding, was strip-searched by school officials because another student said she might have ibuprofen hidden in her underwear, which violated the school's policy. Savana sued her school and NYRA joined an amicus brief in her defense. The Court found that strip searches are "categorically distinct" and must meet stricter requirements than other searches, due to the deeper invasion of the student's privacy. For such a search to be permissible, evidence must show that dangerous or illegal items are hidden there. Suspicionless strip searches are almost always illegal and schools can pay hefty settlements for violating the rules.

Searches of outer clothing and pat-downs

Legal standards for pat-downs in school are unclear, especially since many searches referred to as pat-downs are actually partial strip searches. It is therefore unclear whether random pat-downs of students that only involve outer clothing are actually illegal. Successful challenges of pat-downs usually happen when 1) the school official groped the student during the search, or 2) the "pat-down" was suspicionless and involved removing clothing.

Video recording

Schools have also severely violated students' right to privacy by video recording students without their knowledge while changing in a locker room. Because students have a reasonable expectation of privacy in changing rooms, such searches are considered illegal, such as in Brannum v. Overton County School Board (Sixth Circuit Court of Appeals, 2008).

Personal belongings

School officials only need reasonable suspicion that there is a crime before searching a student's belongings. In the landmark case of New Jersey v. T.L.O. (US Supreme Court, 1985), the Court ruled that school administrators do not need to have a search warrant or probable cause before conducting a search because students have a reduced expectation of privacy when in school.

Nevertheless, there are limitations on schools searching students' belongings. For example, in the case of Burnham v. West (Eastern District Court of Virginia, 1987), the court concluded that the odor of marijuana in the hall does not provide sufficient reason to search all students' book bags, purses, and pockets. It should be noted, however, if an object or item is in plain view, a teacher can take it or search it without reasonable suspicion. Because of this, some schools have required students to only use clear backpacks so that their possessions can be seen.

These standards also apply to parked cars on campus, as in State v. Slattery (Court of Appeals of Washington, 1980).

Student lockers

For the most part, federal law allows locker searches because lockers are considered school property and students shouldn't expect anything they put in there to be kept private. This pertains to other school property, such as desks. However, individual states and school districts may have policies that give greater protection to items in students' lockers, where the locker is seen as the equivalent of a personal bag, but such cases are uncommon.

Metal Detectors

Although schools need reasonable suspicion to single out a student with a metal detector, they are allowed to search the school premises with a metal detector or randomly select students with a metal detector without cause. A metal detector search is often considered a body search, but it is also considered minimally intrusive. Courts have upheld the use of metal detectors at schools and other places such as courthouses and airports.

Cellphone searches

In recent years, NYRA and other civil rights groups have fought for student rights by challenging cell phone searches that were not justified, as in the case of Boca Raton Community High School. For many years the high school had a policy of searching through the text messages, photos, emails, and voicemails of student cell phones that were confiscated during class. Thanks to the efforts of NYRA's Southeast Florida chapter, the school changed its cell phone policy; cell phone searches can now be conducted only when there is reasonable suspicion.

Social media accounts

Schools often try to force students to give school administrators the passwords to their social media accounts. One student successfully sued her school after she was forced to log in to her Facebook account in the principal's office. In that case, S.S. v. Minnewaska Area School District (District Court of Minnesota, 2012), the school had to pay damages and revise its social media privacy policy.

Drug-sniffing dogs

The use of drug-sniffing dogs on private property or to prolong traffic stops requires reasonable suspicion. However, because students in school have "no reasonable expectation of privacy," random searches by drug-sniffing dogs are legal in schools.

In addition to being an invasion of privacy, these searches are not particularly effective. Studies indicate that drug-sniffing dogs are prone to false alerts which lead to unjustified searches. As a drug detection method, they can be barely more accurate than a coin flip. Drug-sniffing dog programs are also expensive, costing the school district $12,000 to $36,000 per year -money that is needed elsewhere. Despite these problems, some school districts continue the practice of using drug-sniffing dogs.

Drug-testing

In the landmark case of Vernonia v. Acton (U.S. Supreme Court, 1995), the Supreme Court ruled that the random drug testing of high school athletes does not violate the reasonable search and seizure clause of the Fourth Amendment. In Board of Education v. Earls (U.S. Supreme Court, 2002), the Supreme Court upheld the Student Activities Drug Testing Policy of the Tecumseh, Oklahoma school district, asserting that the policy of requiring all students participating in competitive extracurricular activities to submit to drug testing was useful to the school district in detecting and preventing drug use. However, students are being forced to undergo drug testing without probable cause. These tests are also prone to give false positives.

Nevertheless, students often consent to random drug screening in an effort to preserve their privileges such as being able to participate in sporting events or having the liberty of driving their cars to school. The fact that students are punished for refusing makes this coerced consent, which is not meaningful consent.

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The Fourth Amendment of the Constitution guarantees the right of everyone "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." This means that if the government (and government institutions like public schools) wants to search your belongings, or take them away from you, they must have a good reason ...

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According to Law (2017), the Texas Court of Criminal Appeals reviewed a case involving an unwarranted search of a student's dorm room.

Residential Assistants searched the dorm room of a student and found drugs. The Residential Assistants reported the discovery to their director who then contacted the police.

The police later entered the dorm room without a warrant and seized the drugs. The student was indicted for possession of a controlled substance.

The ruling in the case upholds the fact that law officials must have a warrant to search and seize.

Law, N. M. (2017, June 13). Your Expectation of Privacy in Your Dorm Room Against Search and Seizure. Retrieved from https://www.conroecriminallawyerblog.com/expectation-privacy-dorm-room-search-seizure/

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What do you do when your dorm room is searched? I get this question quite a bit from students at Sam Houston State University. First, hire an experienced criminal defense attorney before you speak with anyone. The Sam Houston State faculty members and staff are very aggressive with what they consider to be drug and alcohol violations. Your academic career may be on the line. Don't take chances. A new decision by the Court of Criminal Appeals of Texas has given us some guidance as to what the current state of the law is on dorm room searches and seizures.

In State of Texas v. Mikenzie Renee Rodriguez, resident assistants (RAs) conducted a dorm room search of Ms. Rodriguez's personal space. The RAs found drugs and then called their director at the University who in turn called the police. The police responded, entered the dorm room, and seized the drugs. Ms. Rodriguez was then formally charged or indicted for possession of a controlled substance. Ms. Rodriguez was smart and hired an experienced criminal defense attorney who then filed a motion to suppress. The State of Texas appealed and the court of appeals affirmed. In their holding, the court of appeals held that there is no dorm room exception to the Fourth Amendment. The Court of Criminal Appeals of Texas subsequently granted review.

As is typical in most college dorm rooms, Ms. Rodriguez shared the room with another student. You may know that there is typically an agreement between you, the student, and the university which permits routine inspections by authorized university personnel. The agreement at this Texas university provided that, "duly authorized personnel of (said university) reserve the right to enter student rooms at any time for emergency purposes or for the purpose of maintenance, repair, and inspection for health, safety, or violation of university regulations. Here, the resident assistants were doing routine room checks for prohibited items such as microwave ovens, candles, and of course drugs and alcohol. While performing a room check on Ms. Rodriguez's dorm room, no one was present. According to the RAs the first trunk that was checked had marijuana located inside. The RAs then contacted the resident director who instructed them to do a more thorough search of the dorm room. On the second search, the RAs found a matchbox with several tablets located inside that appeared to be ecstasy. The RAs also found a pipe located in a sock. The pill box and the pipe were laid on the floor and the RAs took pictures of the items. The university police were then contacted.

An officer in plain clothes and a badge responded to the scene and the RAs took him into the room. The officer entered the room and looked around. The items of contraband were found in plain view. The offer didn't have a warrant and stipulated that it would have been easy for him to get a warrant. The roommate returned to the room and found the officer, the RAs, and the resident director in her room. They made her wait in the hall. They then allowed her into the room to change her clothes. The officer stated that he "checked" her clothes. Whatever that means. During this period, the officer never asked for consent to search the room. The roommate was questioned and said the items belonged to Ms. Rodriguez.

Upon arriving back at the room, Ms. Sanchez admitted that the items were hers. She admitted that the items were contraband and that the pills were ecstasy. What is interesting is that the detective on this case admitted that the items were not "in plain view" in the traditional sense. Rather, a civilian had moved the items from their original place.

The State of Texas argued that this is "a classic situation where someone who is not a state actor found drugs, notified law enforcement, and when law enforcement got there, it's obvious and plain the minute they are on the scene what it is." The State added that if it were a search the resident director, "an official at the university, would have had apparent authority to invite the officer in." The defense argued that the entry was a search and that no exception applied.

The Court of Criminal Appeals of Texas were not asked about the legality of the circumstances of the original search by the RAs. That matter will have to wait for another ruling regarding the student housing agreement. What the Court was asked to decide was whether the subsequent search by law enforcement with the invitation of the university officials was in violation of the Fourth Amendment. The Court has the same ruling as the court of appeals. that the university student, "retained an expectation of privacy in her dorm room even after it had been searched by private citizens and that the subsequent entry and search by law enforcement did not fall within any recognized exceptions to the warrant requirement."

What's the big picture here? It's that you still have an expectation of privacy in your dorm room, just like you enjoy in a hotel or your own home. If you have been arrested and you feel your rights have been violated, you need to hire an experienced criminal defense attorney immediately.

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Your Expectation of Privacy in Your Dorm Room Against Search and Seizure

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What do you do when your dorm room is searched? I get this question quite a bit from students at Sam Houston State University. First, hire an experienced criminal defense attorney before you speak with anyone. The Sam Houston State faculty members and staff are very aggressive with what they consider to be drug and alcohol violations.

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According to Fossey (2018), college officials cannot search student dorm rooms for law enforcement purposes without a warrant because students who live on campus at public universities are protected by the Fourth Amendment.

College officials cannot rely on the verbiage in university policies or university housing contracts to justify warrantless searches by law officials.

Law officials must obtain a warrant to lawfully search a student's dorm room.

Fossey, R. (2018). Students at Public Universities Have a Constitutional Right to Privacy in Their Dormitory Rooms. Journal of College and University Student Housing, 44(3), 62-79.

https://eric.ed.gov/?id=EJ1180663

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College students who reside in campus dormitories at public universities have a reasonable expectation of privacy in their dorm rooms that is protected by the fourth amendment; and officials cannot search these rooms for law enforcement purposes without a valid warrant. Non-students, however, have no such reasonable expectation of privacy in dormitory rooms that they have vacated or live in as guests in violation of college housing rules. A line of cases indicates that college and university officials may search students' dormitory rooms for non-law-enforcement purposes without offending the fourth amendment if the search is authorized by language in a housing contract or a reasonable regulation adopted to maintain safety, security, and an educational environment conducive to learning. The ninth Circuit has ruled that campus authorities may conduct searches in areas where students have objectively reasonable expectations of privacy without obtaining a warrant if officials are motivated by a "special need" to protect the university's security that is separate and apart from law enforcement concerns. The seventh Circuit has ruled that university student inspectors may conduct a "lawful regulatory search" of a dormitory room to advance "special needs" beyond the needs of law enforcement without the necessity of obtaining a warrant. However, campus officials cannot rely on language in their regulations or student-housing contracts to justify warrantless searches that are conducted pursuant to a criminal investigation. [Discussion questions developed by Alyse Gray Parker.]

Descriptors: College Students, Public Colleges, Privacy, Dormitories, Student Rights, Constitutional Law, College Housing, Law Enforcement, Search and Seizure, Marijuana, School Safety, Educational Environment, Campuses, Police

Association of College and University Housing Officers - International. 941 Chatham Lane Suite 318, Columbus, OH 43221. Tel: 614-292-0099; Fax: 614-292-3205; e-mail: office@acuho-i.org; Web site: http://www.acuho-i.org

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ERIC - EJ1180663 - Students at Public Universities Have a Constitutional Right to Privacy in Their Dormitory Rooms, Journal of College and University Student Housing, 2018

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College students who reside in campus dormitories at public universities have a reasonable expectation of privacy in their dorm rooms that is protected by the fourth amendment; and officials cannot search these rooms for law enforcement purposes without a valid warrant.

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• Fourth Amendment, United States Constitution
• The Fourth Amendment forbids unreasonable searches without a warrant. This law applies to nearly everyone in the United States. Thus, the Fourth Amendment applies to college students who reside in residence halls just as it does to individuals residing in their homes. This means that college students living in residence halls have the same rights as individuals living in homes.
• https://constitution.congress.gov/constitution/amendment-4/

U.S. Const. amend. IV

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• Article 1, Section 9, Texas Constitution
• Section 9 of the First Article of the Texas Constitution forbids unreasonable searches. This law applies to nearly everyone in Texas. Thus, Article 9, Section 9 applies to college students residing in residence halls just as it does to people living in their homes. This means that college students have a right to be free from unreasonable searches while on school premises.
• https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm

Tex. Const. art. 1, § 9.

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THE TEXAS CONSTITUTION



ARTICLE 1. BILL OF RIGHTS



That the general, great and essential principles of liberty and free government may be recognized and established, we declare:


Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.


(Feb. 15, 1876.)


Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.


(Feb. 15, 1876.)


Sec. 3. EQUAL RIGHTS. All freemen†, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.


(Added Nov. 7, 1972.)


Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.


(Feb. 15, 1876.)


Sec. 5. WITNESSES NOT DISQUALIFIED BY RELIGIOUS BELIEFS; OATHS AND AFFIRMATIONS. No person shall be disqualified to give evidence in any of the Courts of this State on account of his religious opinions, or for the want of any religious belief, but all oaths or affirmations shall be administered in the mode most binding upon the conscience, and shall be taken subject to the pains and penalties of perjury.


(Feb. 15, 1876.)


Sec. 6. FREEDOM OF WORSHIP. All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.


(Feb. 15, 1876.)


Sec. 6-a. RELIGIOUS SERVICE PROTECTIONS. This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.


(Added Nov. 2, 2021.)


Sec. 7. APPROPRIATIONS FOR SECTARIAN PURPOSES. No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.


(Feb. 15, 1876.)


Sec. 8. FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the Court, as in other cases.


(Feb. 15, 1876.)


Sec. 9. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.


(Feb. 15, 1876.)


Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall hav† a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself† and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense.† unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penetentiary†, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.


(Feb. 15, 1876. Amended Nov. 5, 1918.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 11. BAIL. All prisoners shall be bailable by sufficient sureties, unless for capital offences†, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 11a. DENIAL OF BAIL AFTER MULTIPLE FELONIES. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.


(b) In this section:


(1) "Violent offense" means:


(A) murder;


(B) aggravated assault, if the accused used or exhibited a deadly weapon during the commission of the assault;


(C) aggravated kidnapping; or


(D) aggravated robbery.


(2) "Sexual offense" means:


(A) aggravated sexual assault;


(B) sexual assault; or


(C) indecency with a child.


(Added Nov. 6, 1956; amended Nov. 8, 1977; Subsec. (a) amended and (b) added Nov. 2, 1993.)


Sec. 11b. DENIAL OF BAIL FOR VIOLATION OF CONDITION OF RELEASE. Any person who is accused in this state of a felony or an offense involving family violence, who is released on bail pending trial, and whose bail is subsequently revoked or forfeited for a violation of a condition of release may be denied bail pending trial if a judge or magistrate in this state determines by a preponderance of the evidence at a subsequent hearing that the person violated a condition of release related to the safety of a victim of the alleged offense or to the safety of the community.


(Added Nov. 8, 2005; amended Nov. 6, 2007.)


Sec. 11c. DENIAL OF BAIL FOR VIOLATION OF PROTECTIVE ORDER INVOLVING FAMILY VIOLENCE. The legislature by general law may provide that any person who violates an order for emergency protection issued by a judge or magistrate after an arrest for an offense involving family violence or who violates an active protective order rendered by a court in a family violence case, including a temporary ex parte order that has been served on the person, or who engages in conduct that constitutes an offense involving the violation of an order described by this section may be taken into custody and, pending trial or other court proceedings, denied release on bail if following a hearing a judge or magistrate in this state determines by a preponderance of the evidence that the person violated the order or engaged in the conduct constituting the offense.


(Added Nov. 6, 2007.)


Sec. 12. HABEAS CORPUS. The writ of Habeas Corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy speedy and effectual.


(Feb. 15, 1876.)


Sec. 13. EXCESSIVE BAIL OR FINES; CRUEL OR UNUSUAL PUNISHMENT; OPEN COURTS; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.


(Feb. 15, 1876.)


Sec. 14. DOUBLE JEOPARDY. No person, for the same offence†, shall be twice put in jeopardy of life or liberty,† nor shall a person be again put upon trial for the same offence,† after a verdict of not guilty in a court of competent jurisdiction.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here and here.


Sec. 15. RIGHT OF TRIAL BY JURY. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury.


(Feb. 15, 1876. Amended Aug. 24, 1935.)


Sec. 15-a. COMMITMENT OF PERSONS OF UNSOUND MIND. No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony. The Legislature may enact all laws necessary to provide for the trial, adjudication of insanity and commitment of persons of unsound mind and to provide for a method of appeal from judgments rendered in such cases. Such laws may provide for a waiver of trial by jury, in cases where the person under inquiry has not been charged with the commission of a criminal offense, by the concurrence of the person under inquiry, or his next of kin, and an attorney ad litem appointed by a judge of either the County or Probate Court of the county where the trial is being held, and shall provide for a method of service of notice of such trial upon the person under inquiry and of his right to demand a trial by jury.


(Added Nov. 6, 1956.)


Sec. 16. BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.


(Feb. 15, 1876.)


Sec. 17. TAKING PROPERTY FOR PUBLIC USE; SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF PRIVILEGES AND FRANCHISES. (a) No person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person, and only if the taking, damage, or destruction is for:


(1) the ownership, use, and enjoyment of the property, notwithstanding an incidental use, by:


(A) the State, a political subdivision of the State, or the public at large; or


(B) an entity granted the power of eminent domain under law; or


(2) the elimination of urban blight on a particular parcel of property.


(b) In this section, "public use" does not include the taking of property under Subsection (a) of this section for transfer to a private entity for the primary purpose of economic development or enhancement of tax revenues.


(c) On or after January 1, 2010, the legislature may enact a general, local, or special law granting the power of eminent domain to an entity only on a two-thirds vote of all the members elected to each house.


(d) When a person's property is taken under Subsection (a) of this section, except for the use of the State, compensation as described by Subsection (a) shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority, shall be subject to the control thereof.


(Feb. 15, 1876. Amended Nov. 3, 2009.)


Sec. 18. IMPRISONMENT FOR DEBT. No person shall ever be imprisoned for debt.


(Feb. 15, 1876.)


Sec. 19. DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.


(Feb. 15, 1876.)


Sec. 20. OUTLAWRY OR TRANSPORTATION OUT OF STATE FOR OFFENSE. No citizen shall be outlawed. No person shall be transported out of the State for any offense committed within the same. This section does not prohibit an agreement with another state providing for the confinement of inmates of this State in the penal or correctional facilities of that state.


(Feb. 15, 1876. Amended Nov. 5, 1985.)


Sec. 21. CORRUPTION OF BLOOD; FORFEITURE OF ESTATE; SUICIDES. No conviction shall work corruption of blood, or forfeiture of estate, and the estates of those who destroy their own lives shall descend or vest as in case of natural death.


(Feb. 15, 1876.)


Sec. 22. TREASON AGAINST STATE. Treason against the State shall consist only in levying war against it, or adhering to its enemies, giving them aid and comfort; and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or on confession in open court.


(Feb. 15, 1876.)


Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defence† of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.


(Feb. 15, 1876.)


† The language of this provision is identical to the language of the official legislative measure that originally proposed the provision. A digital image of the original text of the official enrolled measure can be found here.


Sec. 24. MILITARY SUBORDINATE TO CIVIL AUTHORITY. The military shall at all times be subordinate to the civil authority.


(Feb. 15, 1876.)


Sec. 25. QUARTERING SOLDIERS IN HOUSES. No soldier shall in time of peace be quartered in the house of any citizen without the consent of the owner, nor in time of war but in a manner prescribed by law.


(Feb. 15, 1876.)


Sec. 26. PERPETUITIES AND MONOPOLIES; PRIMOGENITURE OR ENTAILMENTS. Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.


(Feb. 15, 1876.)


Sec. 27. RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.


(Feb. 15, 1876.)


Sec. 28. SUSPENSION OF LAWS. No power of suspending laws in this State shall be exercised except by the Legislature.


 (Feb. 15, 1876.)


Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that every thing in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.


(Feb. 15, 1876.)


Sec. 30. RIGHTS OF CRIME VICTIMS. (a) A crime victim has the following rights:


(1) the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process; and


(2) the right to be reasonably protected from the accused throughout the criminal justice process.


(b) On the request of a crime victim, the crime victim has the following rights:


(1) the right to notification of court proceedings;


(2) the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial;


(3) the right to confer with a representative of the prosecutor's office;


(4) the right to restitution; and


(5) the right to information about the conviction, sentence, imprisonment, and release of the accused.


(c) The legislature may enact laws to define the term "victim" and to enforce these and other rights of crime victims.


(d) The state, through its prosecuting attorney, has the right to enforce the rights of crime victims.


(e) The legislature may enact laws to provide that a judge, attorney for the state, peace officer, or law enforcement agency is not liable for a failure or inability to provide a right enumerated in this section. The failure or inability of any person to provide a right or service enumerated in this section may not be used by a defendant in a criminal case as a ground for appeal or post-conviction writ of habeas corpus. A victim or guardian or legal representative of a victim has standing to enforce the rights enumerated in this section but does not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.


(Added Nov. 7, 1989.)


Sec. 31. FUNDS FOR COMPENSATION TO VICTIMS OF CRIME. (a) The compensation to victims of crime fund created by general law and the compensation to victims of crime auxiliary fund created by general law are each a separate dedicated account in the general revenue fund.


(b) Except as provided by Subsection (c) of this section and subject to legislative appropriation, money deposited to the credit of the compensation to victims of crime fund or the compensation to victims of crime auxiliary fund from any source may be expended as provided by law only for delivering or funding victim-related compensation, services, or assistance.


(c) The legislature may provide by law that money in the compensation to victims of crime fund or in the compensation to victims of crime auxiliary fund may be expended for the purpose of assisting victims of episodes of mass violence if other money appropriated for emergency assistance is depleted.


(Added Nov. 4, 1997.)


Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.


(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.


(Added Nov. 8, 2005.)


Sec. 33. PUBLIC ACCESS TO AND USE OF PUBLIC BEACHES. (a) In this section, "public beach" means a state-owned beach bordering on the seaward shore of the Gulf of Mexico, extending from mean low tide to the landward boundary of state-owned submerged land, and any larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico to which the public has acquired a right of use or easement to or over the area by prescription or dedication or has established and retained a right by virtue of continuous right in the public under Texas common law.


(b) The public, individually and collectively, has an unrestricted right to use and a right of ingress to and egress from a public beach. The right granted by this subsection is dedicated as a permanent easement in favor of the public.


(c) The legislature may enact laws to protect the right of the public to access and use a public beach and to protect the public beach easement from interference and encroachments.


(d) This section does not create a private right of enforcement.


(Added Nov. 3, 2009.)


Sec. 34. RIGHT TO HUNT, FISH, AND HARVEST WILDLIFE. (a) The people have the right to hunt, fish, and harvest wildlife, including by the use of traditional methods, subject to laws or regulations to conserve and manage wildlife and preserve the future of hunting and fishing.


(b) Hunting and fishing are preferred methods of managing and controlling wildlife.


(c) This section does not affect any provision of law relating to trespass, property rights, or eminent domain.


(d) This section does not affect the power of the legislature to authorize a municipality to regulate the discharge of a weapon in a populated area in the interest of public safety.


(Added Nov. 3, 2015.)


Sec. 35. RIGHT OF CERTAIN FACILITY RESIDENTS TO DESIGNATE ESSENTIAL CAREGIVER. (a) A resident of a nursing facility, assisted living facility, intermediate care facility for individuals with an intellectual disability, residence providing home and community-based services, or state supported living center, as those terms are defined by general law, has the right to designate an essential caregiver with whom the facility, residence, or center may not prohibit in-person visitation.


(b) Notwithstanding Subsection (a) of this section, the legislature by general law may provide guidelines for a facility, residence, or center described by Subsection (a) of this section to follow in establishing essential caregiver visitation policies and procedures.


(Added Nov. 2, 2021.)

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THE TEXAS CONSTITUTION ARTICLE 1. BILL OF RIGHTS

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• Piazzola v. Watkins, 1971, United States Court of Appeals, Fifth Circuit
• In the Piazzola v. Watkins case, Troy State University officials found drugs in two student residence halls in which they entered without warrants or consent. The court found that the searches were illegal since Troy State University officials did not have warrants, probable cause, a waiver, or consent. This verifies that a student who occupies a college residence hall is protected by the Fourth Amendment of the United States Constitution.
• http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions

Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971),

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This site contains opinions (both published and unpublished) released from 1992 to the present. If you are unable to locate an older opinion on our website please contact the Clerk's Office at Webmaster at ca5.uscourts.gov or call (504) 310-7700.

Opinions sometimes include citations to internet addresses (URLs). As URLs may change or disappear altogether over time, the court attempts to capture, as closely as possible, the URL material at the time of the release of the opinion, and make that material available to the public. To access court archived material in an opinion, visit: http://www.lb5.uscourts.gov/ArchivedURLs/

# data[].attributes.attachment_link.description
This site contains opinions (both published and unpublished) released from 1992 to the present. If you are unable to locate an older opinion on our website please contact the Clerk's Office at Webmaster at ca5.uscourts.gov or call (504) 310-7700. Opinions sometimes include citations to internet addresses (URLs).

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• Commonwealth v. Carr,  2010, Massachusetts Supreme Court
• In the Commonwealth v. Carr case three officers searched a student's dorm room without a search warrant or  written consent of the student occupants.The court found that the  warrantless searches had violated students’ constitutional rights. This ruling verifies that officials cannot violate the constitutional rights of students and that officials need to obtain a search warrant before initiating a search.
• http://masscases.com/cases/app/76/76massappct41.html

Commonwealth v. Carr, 936 N.E.2d 883 (Mass. 2010)

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76 Mass. App. Ct. 41

November 3, 2009 - December 23, 2009

Middlesex County

Present: GRASSO, BERRY, & MEADE, JJ.

Related Cases:

GRASSO, J. We consider whether a warrantless entry of a dormitory room and seizure of weapons by Boston College campus police pursuant to the college's "Conditions of Residency"

Page 42

requires suppression of drugs discovered during a subsequent search conducted with the consent of the room's occupants, Daniel Carr and John Sherman. A grand jury returned indictments against them for trafficking in cocaine, possession of psilocybin with intent to distribute, and possession of marijuana with intent to distribute.

After an evidentiary hearing, a judge of the Superior Court allowed the defendants' motions to suppress the drugs and other evidence seized. The judge concluded that the initial entry into the defendants' room was unlawful and that the subsequent search was not undertaken with the defendants' free and voluntary consent. A single justice of the Supreme Judicial Court allowed the Commonwealth's application for an interlocutory appeal. For the reasons that follow, we reverse the orders of suppression.

1. The motion to suppress. We summarize the facts found by the motion judge. Where relevant, we supplement the judge's factual findings "with uncontested testimony from the suppression hearing, mindful that assessment of witness credibility is the province of the motion judge." Commonwealth v. Murphy, 63 Mass. App. Ct. 11 , 12 (2005) (citation omitted).

On February 14, 2007, at around midnight, April Wynn, a resident director at Boston College with oversight responsibility for Gonzaga Hall, contacted the campus police. [Note 2] Wynn spoke with Sergeant John Derick, a twenty-year member of the campus police department. Wynn told Derick that two students who lived in Gonzaga Hall wanted to report a weapon inside a dormitory room.

Because the students feared that their identity would become known, Wynn accompanied them from Gonzaga Hall to the campus police office. The students told Derick that Daniel Carr had been bullying students and bragging about beating people up and having a knife. Both students had seen Carr waving a knife around. They also told Derick that a third student, whom they did not want to identify, had seen the butt of a gun, possibly fake, inside Carr's dormitory room. Derick confirmed that Carr lived in room 114 Gonzaga Hall.

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Pursuant to Boston College's "Conditions for Residency" all weapons of any kind, whether licensed or unlicensed and whether real, counterfeit, or toy, are prohibited and subject to confiscation. [Note 3] All students who reside in a dormitory must read these rules and signify their assent to abide by them in order to reside in a dormitory. [Note 4]

After speaking with the students, Derick met in Wynn's office with Boston College police Sergeant Anthony Cadogan, Officer Sean Daley, and Austin Ash, another resident director. The three police officers proceeded to 114 Gonzaga Hall together with the two resident directors. There, Derick knocked and identified himself as a campus police officer.

A male voice on the other side of the door replied, "Hold on. I've got to get my pants on." After thirty seconds elapsed with no response, Derick knocked again. The door opened a few seconds

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later, and Derick entered the room. Cadogan and Daley remained outside with Wynn and Ash. The officers were dressed in full uniform with holstered firearms.

Inside, Derick encountered three individuals. At Derick's request, Carr and Sherman identified themselves and indicated that they lived there. The third male, Zachary Taylor, said that he did not live there, and Derick asked him to leave. The room contained a set of bunk beds, two desks, two closets, a small futon type chair, and a large footlocker in the middle of the room.

Derick explained to Carr and Sherman that he was responding to a report of a gun in the room. Carr told Derick that he previously had a toy gun but had thrown it out. Derick did not believe this and read Carr his Miranda rights. Carr acknowledged that he understood them. Derick asked him where the gun was, and Carr replied by pointing to the bed and saying, "I think it's under the bed."

Derick reached under the bed and retrieved a light, hard plastic replica gun that closely resembled a .45 caliber handgun with a clip. The gun was missing a red tip that is characteristic of replicas, and Derick believed that it was capable of shooting some type of projectile.

After Derick discovered the gun, Cadogan and Daley entered the room. Derick asked Carr if there were any more weapons, and Sherman produced a folding buck knife from his waistband. In short order, the police also confiscated a smaller folding knife and a kubotan, a spiked martial arts weapon. Although the items violated the college's "Conditions of Residency," none appeared to be unlawful.

Derrick told the defendants that he would like to do a search of the room because, based upon his experience, he believed he would find more. Cadogan handed each a form, the top part of which is captioned "Miranda Waiver" and the bottom, "Consent to Search." Before signing, Carr asked if he could make a telephone call. Upon being told that he could, he made a call to his father from a nearby desk telephone. Carr was overheard telling his father, "It's no big deal. It's a fake gun. I don't know why they're here." Carr then handed the telephone to Derick. Carr's father asked Derick what was going on and why they were searching the room. Derick explained that they had found a weapon,

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and that was prohibited on campus. Carr's father kept repeating to Derick, "It's just a fake gun . . . a toy gun. What's the big deal?"

Both defendants consented to a search of their room and inserted their names on the appropriate lines in the top and bottom portions of "Waiver" and "Consent" forms. [Note 5] In the "Miranda Waiver" part of the form, the defendants inserted their names and responded to questions signifying that they had the ability to speak and understand English, that they had not consumed drugs or alcohol, and that no threats or promises had been made to them. Each signed the "Miranda Waiver." In the "Consent to Search" portion, each defendant entered his name in two places, the latter of which stated that he was "signing the form voluntarily, without threats or promises of any kind." [Note 6] In the course of the search that followed, Daley inadvertently discovered a bag of psilocybin mushrooms underneath a backpack on the floor and a baggie filled with marijuana underneath the futon cushion. Twelve small bags of a white powdery substance believed to be cocaine

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fell out of a winter jacket, and two more baggies of cocaine were located under the bunkbeds. A pipe with marijuana residue was found in a coat hanging on the back of the door. After discovering these items, the police arrested the defendants and handcuffed them.

Inside the footlocker in the middle of the floor, the officers found a locked box that emanated a pungent odor of marijuana. Carr stated that he did not know where the key was, but Derick observed a set of keys nearby, and one opened the box. [Note 7] Inside, Derrick found individually packaged baggies of marijuana, ten marijuana cigarettes, rolling papers, seeds, and the defendants' passports. In Sherman's desk, the police located a piece of paper containing names, amounts of money, and marijuana residue.

2. Discussion. "[W]e accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of [her] ultimate findings and conclusions of law.' " [Note 8] Commonwealth v. Costa, 65 Mass. App. Ct. 227 , 229-230 (2005), quoting from Commonwealth v. Scott, 440 Mass. 642 , 646 (2004). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Scott, supra, quoting from Commonwealth v. Mercado, 422 Mass. 367 , 369 (1996).

The judge concluded that because Derick entered the room immediately, without awaiting invitation, the initial entry was an unlawful intrusion under the Federal and State Constitutions, and that any consent, whether to enter or search, was not voluntarily given. [Note 9] We disagree. We conclude that the initial entry into the defendants' room to investigate a credible report of a weapon in the room was authorized under the college's "Conditions of Residency" and did not require a search warrant or consent. We

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also conclude that the subsequent permission to search was not the fruit of a prior unlawful entry and was freely and voluntarily given.

(a) The warrantless entry. It cannot be gainsaid that Boston College is a private actor not subject to the constraints of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Considine, 448 Mass. 295 , 299-300 (2007) (search of students' rooms by private school officials is not State action for Fourth Amendment or art. 14 purposes). See also Burdeau v. McDowell, 256 U.S. 465, 475 (1921); Commonwealth v. Richmond, 379 Mass. 557 , 561-562 (1980) (Fourth Amendment and exclusionary rule apply only to State action). Nor is there any question that under the college's "Conditions of Residency," Wynn and Ash possessed the right to enter the defendants' room and make a "plain view search" [Note 10] for prohibited items without implicating the Fourth Amendment or art. 14. [Note 11]

Not so easily resolved is whether enlisting the assistance of the campus police to accomplish what Wynn or Ash clearly could have accomplished on their own transforms the encounter into a search and seizure that violates the requirements of the Fourth Amendment and art. 14. Specially commissioned officers formally affiliated with the sovereign and possessing authority beyond that of an ordinary citizen such as arrest and use of weapons are treated as State agents subject to constitutional constraints as to search and seizure. See Commonwealth v. Leone, 386 Mass. 329 , 334-335 (1982). However, the constitutional constraints upon such special police officers performing investigatory duties "does not mean that the bounds of permissible conduct are the same for the privately employed special officer as they would be for an ordinary police officer." Id. at 335. The private function adds a

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new aspect to his activities that is relevant to proper application of constitutional protections against search and seizure. Ibid. "The action he takes on behalf of his employer may be a lawful and necessary means of protecting the employer's property, although it would be impermissible if taken on behalf of the State in pursuit of evidence. When the guard's conduct is justified by his legitimate private duties, it should not be treated as lawless, or 'unreasonable' search and seizure." Id. at 335-336 (internal citations omitted).

Applying the principles set forth in Leone to the circumstances here, we hold that while the Fourth Amendment and art. 14 apply to the conduct of Boston College's campus police, in this circumstance the officers' private function affects the constitutionality of their conduct and renders it reasonable. See Commonwealth v. Leone, 386 Mass. at 334-338 (decided solely on Fourth Amendment grounds). See also Commonwealth v. Considine, 448 Mass. at 301, nn.13-14 (1997) (suggesting in dictum that any search or seizure of contraband by State police officer acting on invitation of private school officials is permissible). The initial entry into the defendants' room and the discovery and seizure of the facsimile handgun and other weapons were actions reasonably undertaken by the police on behalf of the legitimate interests of their employer Boston College, a private institution and not a State actor. See Commonwealth v. Leone, 386 Mass. at 335-336. In consequence, their entry into the room without a search warrant does not offend Federal or State constitutional requirements.

The entry was not in furtherance of a criminal investigative function, but to address a violation of Boston College's policy that prohibited weapons in the dormitory (whether lawful or unlawful, real or counterfeit) and authorized confiscation of such items found in plain view. The police acted on reliable information from two identified students that Carr, who resided in room 114 Gonzaga Hall, possessed a knife. Adding to the concern was the report that another student had seen a gun or the butt of a gun inside Carr's room. Although the report of the gun, being anonymous, lacked the reliability of that regarding the knife, the fact that the police harbored concern of an even more serious infraction is immaterial. See Commonwealth v. Blevines, 438 Mass. 604 , 608 (2003) (officer's subjective purpose not relevant when search permissible on objective standard).

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Measured against the factors set forth in Leone for assessing the constitutional propriety of a special police officer's actions, the actions of the Boston College campus police pass constitutional muster. See Leone, supra at 337-338. First, at the time they went to room 114, the police were acting under the control of their private employer, Boston College. The resident director enlisted police assistance, not vice versa. [Note 12] Second, the officers' actions were unquestionably related to the college's private purposes of ascertaining that weapons, whether real or counterfeit, were not present in the dormitories. The investigation was a legitimate means of protecting the college's property and fulfilling its obligation to provide a safe environment for its residents. Third, the officers acted reasonably. They went to the room, knocked on the door, awaited response from the occupants, entered, arranged to speak only with the residents, asked them whether they had such weapons, and confiscated the weapons that the defendants acknowledged having. We discern nothing offensive to the individual dignity of the students in the manner and methods employed by the police to locate and seize the prohibited items. When Carr acknowledged that the gun was under the bed, the police were not required to let him retrieve it rather than retrieving it themselves. See Commonwealth v. Guthrie G., 66 Mass. App. Ct. 414 , 418-419 (2006). See also Commonwealth v. Voisine, 414 Mass. 772 , 783 (1993); Commonwealth v. Hill, 57 Mass. App. Ct. 240 , 243-245 (2003).

Nothing in Commonwealth v. Neilson, 423 Mass. 75 (1996), is to the contrary. There, officials of Fitchburg State College, a public actor, entered a dormitory room to investigate the prohibited keeping of a pet. The college had expressly reserved the right to inspect dormitory rooms. In the course of investigation, the officials inadvertently discovered marijuana being cultivated. Rather than seizing the marijuana and turning it over to the police, or providing information to the police with which a search warrant could be obtained, the officials invited the police to enter. The court in Neilson concluded that the constitutional violation

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occurred not when the college officials entered to enforce the college's health and safety regulations, but when the police entered the room, searched, and seized evidence without a search warrant, consent, or exigent circumstances. See id. at 79. As observed in Neilson, the defendant's consent was given not to the police, but to the college officials, who "had no authority to consent to or join in a police search for evidence of crime." Ibid., quoting from Piazzola v. Watkins, 442 F.2d 284, 290 (5th Cir. 1971). In contrast to Neilson, here the police entered to enforce a residency condition relating to the health and safety of all the dormitory occupants, not in furtherance of a criminal investigation.

(b) Voluntariness of consent to search. While the initial entry and discovery of weapons did not require a search warrant or consent of the defendants, the search leading to the discovery of the drugs stands on different footing. Whether done in furtherance of Boston College's policies or for criminal investigative purposes, such a search required the consent of the defendants. [Note 13] The Commonwealth bears the burden of proving that such consent was given freely and voluntarily. Commonwealth v. Rogers, 444 Mass. 234 , 237-238 (2005). Whether consent is free and voluntary is to be determined from all the circumstances. Commonwealth v. Yehudi Y., 56 Mass. App. Ct. 812 , 816-817 (2002). See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

Upon the facts, the motion judge erred in ruling that the Commonwealth failed to meet that burden. To the contrary, the facts establish that the defendants' consent was freely and voluntarily given. See Commonwealth v. Guthrie G., supra at 418 (juvenile's consent to three officers free and voluntary). The judge's conclusion that the unlawful entry by the police rendered invalid the defendants' consent to a search of the room fails as matter of law. Because the initial entry and discovery of the prohibited weapons was lawful, the entry does not render any subsequent consent involuntary. Compare Commonwealth v. Midi, 46 Mass. App. Ct. 591 , 595 (1999) (prior invalid entry taints subsequent consent to search); Commonwealth v. Allen, 54 Mass. App. Ct. 719 , 721-722 (2002).

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Similarly, the judge erred in concluding that the Commonwealth failed to meet its burden of proving that the defendants' consent was free and voluntary. See Commonwealth v. Wallace, 70 Mass. App. Ct. 757 , 762-764 (2007) (consent to search free and voluntary where no prior illegality, defendant free to leave, and understood he had right to refuse). "Whether consent is voluntary depends on the nature of [the] interaction between the police and the occupant." Commonwealth v. Rogers, 444 Mass. at 238. Contrary to the motion judge's view, neither the officers' request to search nor the defendants' responses are ambiguous. As noted earlier, the defendants did not place in issue whether consent was given but only whether the consent was given freely and voluntarily. [Note 14]

While the judge appears to have concluded that the defendants' consent was not free and voluntary because they may not have felt free to refuse the officer's request or leave the room, the facts found point the other way. That the police were armed, in uniform, and represented an "institutional presence" is a characteristic common to most, if not all, police encounters. More importantly, the police did not display their weapons or otherwise employ force. They knocked on the door and announced their presence to obtain entry, entered lawfully only after Carr opened the door, and explained their presence and purpose. Upon locating prohibited weapons, Derick explained his reason for wanting to conduct a more extensive search and his request for the defendants' consent. Prior to giving his consent, Carr asked to confer with his father and did so. Carr's father also spoke with Derick. Neither defendant was in custody at the time consent was given, and they were not arrested until after drugs were found in the course of the search. See Commonwealth v. Cantalupo, 380 Mass. 173 , 178 (1980). The defendants placed no limitation on their consent, expressly or by implication. See Commonwealth v. Gaynor, 443 Mass. 245 , 254 (2005).

Nothing in the facts supports the conclusion that the request to search and the accompanying "Consent to Search" form were commands to which the defendants meekly acquiesced. The defendants were college students whose age and level of education equipped them to understand what was being asked of them

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and that they had an option to refuse. See Commonwealth v. Burgess, 434 Mass. 307 , 309-311 (2001) (consent to search validly given by eighteen year old with limited education and history of substance abuse); Commonwealth v. LeBeau, 451 Mass. 244 , 258-260 (2008) (consent to search free and voluntary and made with knowledge that he could refuse); Commonwealth v. Guthrie G., supra. They were not unusually susceptible or impressionable.

The failure of the police to advise the defendants orally that they could refuse does not vitiate the consent given. See Commonwealth v. Sanna, 424 Mass. 92 , 97-98 & n.10 (1997); Commonwealth v. Costa, 65 Mass. App. Ct. at 231-232 (Miranda type warning not necessary prerequisite to valid consent to search). Moreover, the written consent form advised the defendants that they "may have a constitutional right to refuse." See Commonwealth v. Sanna, supra. Indeed, the very fact that the police sought the defendants' written consent to search demonstrates that the police were not claiming the right to search further, but seeking permission to do so. A person of average intelligence would necessarily comprehend that refusal was an option.

In sum, despite the result reached by a conscientious motion judge, we conclude as a matter of our independent judgment that the facts and circumstances establish that the consent was free and voluntary and neither coerced nor mere acquiescence to a claim of lawful authority. See Commonwealth v. Voisine, 414 Mass. at 783; Commonwealth v. Heath, 12 Mass. App. Ct. 677 , 684-685 (1981).

Orders allowing motions to suppress reversed.

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CARR, COMMONWEALTH vs., 76 Mass. App. Ct. 41

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Middlesex County Present: GRASSO, BERRY, & MEADE, JJ. Related Cases: GRASSO, J. We consider whether a warrantless entry of a dormitory room and seizure of weapons by Boston College campus police pursuant to the college's "Conditions of Residency" Page 42 requires suppression of drugs discovered during a subsequent search conducted with the consent of the room's occupants, Daniel Carr and John Sherman.

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• Residence Hall Contract Terms and Conditions, Rights and Obligations of University, University of Texas at Arlington
• The University of Texas at Arlington’s Residence Hall Contract explains that university officials have the right to enter student residence halls at any time if there is an emergency and at any reasonable time for any reasonable purpose. A few reasonable purposes include, but are not limited to: inspection, maintenance, or an investigation of violations.

University of Texas at Arlington. (2020). Residence Hall Contract Terms and Conditions, Rights and Obligations of University. Retrieved from http://www.uta.edu/housing/housing/manuals/Terms and Conditions for Residence Hall Contract - 2019-20200 updated winter.pdf.

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Terms and Conditions for Residence Hall Contract - 2019-20200 updated winter

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According to the ASCA ethical standards for school counselors, standard F.e. states that counselors must apply the ethical principles of beneficence, autonomy, non-maleficence, loyalty and justice when faced with an ethical issue (ASCA, 2016). This standard could apply to many scenarios. One specific example is if I hear about a student who possesses a controlled substance in her dorm room, I must apply the ethical principles and maintain confidentiality unless the student is in danger of harming herself or someone else.

American School Counselor Association (2016). ASCA Ethical Standards for School Counselors. Alexandria,

VA: Author.

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Flex Your Rights is an educational non-profit foundation that aims to educate the public about basic rights and protections during encounters with law enforcement. Here is a helpful link that shares important information about privacy rights and student housing.

What Are My Rights in a College Dorm? (n.d.). Retrieved from https://www.flexyourrights.org/faqs/what-are-my-rights-in-a-college-dorm/

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College students suffer from an unfortunate lack of privacy rights in many situations. Dorms are the property of the university, thus school officials and campus police tend to feel a sense of entitlement with regards to entering student housing. Nevertheless, knowing and asserting your rights can help protect you on campus just as it would anywhere else.

The rental agreement for your dorm room should specify when school officials may and may not enter, so make sure you're familiar with the terms of your lease and keep a copy on hand. In many cases, student housing affords less privacy protection than a standard rental agreement, so be mindful of the potential for random inspections and other intrusions that are common on college campuses.

Campus policies are written and enforced differently from one school to the next, so it's wise to familiarize yourself with the rules and the people who enforce them. Although the campus environment may reduce individual privacy, it provides great opportunities to get to know school officials and security staff. Building good relationships with the people around you is the best strategy for preventing problems before they occur.

Regardless of the specific policies and practices at your school, it's always wise to protect your privacy by politely refusing searches and declining to incriminate yourself. We've heard many success stories from college students who asserted their rights, so remember that keeping calm and knowing the rules will help improve your odds of avoiding problems.

Finally, we've observed that marijuana smoking is the quickest and easiest way to get in trouble in your dorm. Many schools put significant resources into catching and punishing marijuana users on campus, often resulting in severe sanctions such as arrest, removal from the dorms, suspension, urine testing, fines, parental notification, etc.

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What Are My Rights in a College Dorm? | Flex Your Rights

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College students suffer from an unfortunate lack of privacy rights in many situations. Dorms are the property of the university, thus school officials and campus police tend to feel a sense of entitlement with regards to entering student housing. Nevertheless, knowing and asserting your rights can help protect you on campus just as it would anywhere else.

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Recommendations / Best Practices for Compliance: 

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Recommendations / Best Practices for Compliance: 

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Learn about your rights and assert them when necessary.

Read your housing contract before you sign.

Keep a copy if the contract, terms, and agreements related to housing.

Don't be afraid to ask questions if you are uncertain about the contract.

Familiarize yourself with the rules and the office/individuals who enforce them.

Get to know school officials and security staff.

Most importantly, avoid possessing prohibited items or participating in prohibited activities on while on campus.