The Dorm Room, the Fourth Amendment and the Issue of First Impression

This post examines a recent opinion from the Court of Criminal Appeals of Texas: State v. Rodriguez, 2017 WL 2457441 (2017). As courts usually do, the Court of Criminal Appeals begins the opinion by explaining that

[r]esident assistants searched the dorm room of Mikenzie Renee Rodriguez, found drugs, and called their director, who in turn called the police. The police then entered the room and seized the drugs. Rodriguez was indicted for possession of a controlled substance. The trial court granted Rodriguez's motion to suppress and, on the State's appeal, the court of appeals affirmed—holding there is no college dorm room exception to the Fourth Amendment. State v. Rodriguez, ––– S.W.3d ––––, 2015 WL 5714548 (Tex. App.—Eastland 2015). We granted review because this is an issue of first impression to this Court. . . .

State v. Rodriguez, supra. In the last sentence of the paragraph above, the Court of Criminal Appeals is explaining that the officers not only did nor have a search warrant, but none of the exceptions to the warrant required, either. State v. Rodriguez, supra.

The opinion goes on to examine the lower court’s ruling on Rodriguez’s motion to suppress evidence, which argued that the police did not have a search warrant issued by a judge authorizing them to enter her dorm room and seize items she had there. State v. Rodriguez, supra. The court explains that at

the hearing on the motion to suppress, the only issue before the trial court was whether the police search was lawful; Appellee did not challenge the search by the civilians. Witnesses testified that Appellee and Adrienne Sanchez, freshman students at Howard Payne University in Brownwood, Texas, shared a dorm room on campus. A housing agreement permitted routine inspections by authorized personnel. Pursuant to this agreement, resident assistants (`RAs’) Miriam Mackey and Catherine Mullaney performed room checks for items that residents were not supposed to have such as candles, microwave ovens, and more obviously prohibited items such as drugs or alcohol. They performed the checks as a matter of course, not at the behest of any law enforcement agency.

When the RAs performed their normal room check on the room shared by Appellee and Sanchez, there was no one in the room. They found marijuana in the first trunk they looked through. The RAs contacted Nancy Pryor, the resident director, who told them to do a more thorough search. The RAs subsequently found a matchbox containing what they believed to be ecstacy [sic] pills in the bottom of a basket full of fingernail polish and a pipe inside a sock that had tape wrapped around it. The RAs laid the pill box and the pipe on the floor and took cell phone pictures of the items.

State v. Rodriguez, supra.

The opinion continues, explaining that

[t]he resident director contacted the Howard Payne Police. Howard Payne Officer Robert Pacatte, in plain clothes but with a badge, responded, and Pryor took him up to the room. Officer Pacatte entered the room and looked around.

Q. When you got to the room, were you able to see anything out in plain view that you would identify as contraband?

A. Yes, ma'am. On the floor were several items that the ladies had found and had placed on the floor. One would be a—do you mind if I look at my notes for a second?

Q. That's fine.

A. One was a glass pipe, a cigarette lighter, a box of wooden matches that was open and it had two pills laying on top of them, on top of the matches that were in the box, and I don't—I said a cigarette lighter was there also. And then I was shown across the room to a foot locker that was open and empty with the exception of a cigarette lighter and a small package that I believed to be—have in it what I believed to be marijuana.

He took some photos and contacted the Brownwood Police. Officer Pacatte acknowledged that he did not have a warrant and that `[i]t would have been easy enough to obtain a warrant.’ He also stated that there were no exigent circumstances, and that he did not ask for consent before entering the room to investigate and photograph the contraband.

Meanwhile, Adrienne Sanchez returned to the dorm room. When she opened the door she saw the two RAs, the resident director, and the campus police officer. At first, they told her to wait in the hall, but then allowed her in so that she could change clothes. Officer Pacatte `checked’ her clothes. He never asked her for consent to search the room. The group did let her leave to go eat. She came back with her coach and, by then, the Brownwood detectives had arrived. Again, she wasn't asked for consent to search the room. As Sanchez explained, `[T]he detectives talked to me, asked me what objects in the room, if they were mine or if they were Mikenzie's, and that was about it.’ Then they let her out.

State v. Rodriguez, supra.

The Court goes on to explain what happened next:

Sanchez told the officers that the items belonged to her roommate, Appellee. Officer Pacatte handed Brownwood Detective Joe Aaron Taylor a plastic sack that had the items in it. Appellee then arrived. After she was read her rights, she admitted that the contraband was hers and said that the pills were Ecstasy. Detective Taylor said the items were not `in plain view' in the traditional sense because a civilian had moved the items from their original place. Detective Taylor also said it would not have been difficult to obtain a warrant, and that the items seized were not in danger of destruction. The defense argued that the police conduct constituted a search.

We have never said that the RAs were State actors. That's not an issue. The issue is that once the police became involved and this became a prosecutorial search, which is what the law, the case law, stipulates, then, it becomes—you have to follow the Fourth Amendment and Article 1 guarantees.

According to the defense, the entry was a search, and no exception applied. The State countered 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.’ But if it were a search `Ms. Pryor, as an official at the university, would have had apparent authority to invite the officer in.’

State v. Rodriguez, supra.

The opinion then explains that the

trial court granted the motion to suppress, finding that the warrantless search of Appellee's residence, without the existence of an applicable exception, violated the Fourth Amendment. On direct appeal, the State, relying in part on Medlock v. Trustees of Ind. Univ., No. 1:11-CV-00977-TWP-DKL, 2011 WL 4068453 (S.D. Ind. Sept. 13, 2011), argued that, under the `private search’ doctrine, the officers' entry into Appellee's dorm room did not constitute a search: At the time of their entry, Appellee no longer possessed a subjective expectation of privacy that society would be willing to recognize as reasonable. In Medlock, Zachary Medlock had sought a preliminary injunction to prevent enforcement of his one-year suspension from Indiana University, the result of the discovery of marijuana and drug paraphernalia in his university dormitory room. Id. at *1. Medlock alleged that the search of his room by state school officials (and later the campus police) violated the Fourth Amendment. Id. at *4. In denying the preliminary injunction, the Southern District Court of Indiana noted that Medlock was unlikely to succeed in his claim because once resident advisors were lawfully inside his room to perform a health and safety inspection and discovered marijuana, they were justified in giving access to law enforcement officers. Medlock, 2011 WL 4068453, at *5-6.

State v. Rodriguez, supra.

The Court of Criminal Appeals then began its analysis of the issues involved in the appeal, explaining that the

court of appeals rejected the State's argument, noting that (1) the physical entry of the home is a search; (2) Appellee's dorm room is her home; and therefore, (3) the officers' physical entry into Appellee's dorm room constituted a search. Rodriguez, ––– S.W.3d at ––––, 2015 WL 5714548, at *4-6. The court found Medlock distinguishable because (1) it involved an administrative proceeding with Indiana University rather than a criminal prosecution; (2) the officer in Medlock observed the marijuana in plain view prior to entering the dorm room; and (3) the officer in Medlock actually obtained a search warrant. Id. at ––––, 2015 WL 5714548, at *5. The appellate court also agreed with the trial court's conclusion that the State failed to prove that the resident director had the authority, actual or apparent, to permit the officers to enter Appellee's dorm room without a search warrant. Id. at ––––, 2015 WL 5714548, at *6-7.

The court of appeals distinguished the search here from the dorm room search upheld in Grubbs v. State, 177 S.W.3d 313 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). Grubbs had argued that the RA who had entered to investigate the odor of marijuana opened the door for the police, but the record showed that the officers waited in the hall and only entered after Grubbs or his roommate invited the officers in. Rodriguez, ––– S.W.3d at –––– – ––––, 2015 WL 5714548, at *5-6; Grubbs, 177 S.W.3d at 316-18. Here, though, it was dorm personnel who led the officers to Appellee's dorm room. `Despite the authority given to the dorm personnel to enter the dorm room themselves, they simply did not have authority to give police officers consent to enter Appellee's dorm room. Rodriguez, ––– S.W.3d at ––––, 2015 WL 5714548, at *6.

State v. Rodriguez, supra.

The opinion goes on to point out that the

court of appeals pointed to Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971). There, law enforcement officers, accompanied by Troy State University officials, searched six or seven dormitory rooms located in two separate residence halls. The search was based on a tip that students living in those rooms had marijuana. Id. at 286. In holding the search of Piazzola's dorm room unconstitutional, the Fifth Circuit noted that a dorm room is analogous to an apartment or a hotel room—a place in which Piazzola maintained a reasonable expectation of freedom from governmental intrusion. Id. at 288.

State v. Rodriguez, supra.

The court quoted this passage from Piazzola:

`[A] student who occupies a college dormitory room enjoys the protection of the Fourth Amendment. True the University retains broad supervisory powers which permit it to adopt the regulation heretofore quoted, provided that regulation is reasonably construed and is limited in its application to further the University's function as an educational institution. The regulation cannot be construed or applied so as to give consent to a search for evidence for the primary purpose of a criminal prosecution. Otherwise, the regulation itself would constitute an unconstitutional attempt to require a student to waive his protection from unreasonable searches and seizures as a condition to his occupancy of a college dormitory room. Clearly the University had no authority to consent to or join in a police search for evidence of crime.’

Rodriguez, ––– S.W.3d at ––––, 2015 WL 5714548, at *6 (quoting Piazzola, 442 F.2d at 289-90).

The State filed a petition for discretionary review, arguing that there was no Fourth Amendment search, but, if there were one, it was justified under either the special needs or consent exceptions to the warrant requirement.

State v. Rodriguez, supra.

The Court of Appeals then outlined the “standard of review” it would use in arriving at its decision – its “holding” – in the case. State v. Rodriguez, supra. It explained that

[i]n reviewing a motion to suppress, we apply a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Trial courts are given almost complete deference in determining historical facts. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008). 2008); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When a trial judge makes express findings of fact, an appellate court must examine the record in the light most favorable to the ruling and uphold those fact findings so long as they are supported by the record. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The appellate court then proceeds to a de novo determination of the legal significance of the facts as found by the trial court—including the determination of whether a specific search or seizure was reasonable. Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004).

State v. Rodriguez, supra.

The Court of Appeal then began its analysis of the Fourth Amendment issues in the case, explaining, initially, that the

Fourth Amendment guarantees `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ U.S. CONST. amend. IV. The central concern underlying the Fourth Amendment has remained the same throughout the centuries; it is the concern about giving police officers unbridled discretion to rummage at will among a person's private effects. State v. Granville, 423 S.W.3d 399, 405 (Tex. Crim. App. 2014). A Fourth Amendment claim may be based on a trespass theory of search (one's own personal effects have been trespassed), or a privacy theory of search (one's own expectation of privacy was breached). Ford v. State, 477 S.W.3d 321, 328 (Tex. Crim. App. 2015). If the government obtains information by physically intruding on persons, houses, papers, or effects, a trespass search has occurred. United States v. Jones, 565 U.S. 400, 404-05 (2012). If the government obtains information by violating a person's reasonable expectation of privacy, regardless of the presence or absence of a physical intrusion into any given enclosure, a privacy search has occurred. Florida v. Jardines, –––U.S. ––––, 133 S.Ct. 1409 (2013); Kyllo v.United States, 533 U.S. 27, 40 (2001). A search, conducted without a warrant, is per se unreasonable, subject to certain `jealously and carefully drawn’ exceptions. Georgia v. Randolph, 547 U.S. 103,109 (2006).

State v. Rodriguez, supra.

The opinion continues, explaining that the

physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Welsh v. Wisconsin, 466 U.S. 740, 748(1984). Of course, Fourth Amendment protections of the `home’ are not limited to houses. While a landlord may have limited authority to enter to perform repairs, a landlord does not have the general authority to consent to a search of a tenant's private living space. Maxwell v. State, 73 S.W.3d 278, 282 n. 3 (Tex. Crim. App. 2002 ) citing Chapman v. United States, 365 U.S. 610 (1961)). Nor may a hotel clerk validly consent to the search of a room that has been rented to a customer. Maxwell, id. (citing Stoner v. California, 376 U.S. 483 (1964)).

And as a general matter, `”[a] dormitory room is analogous to an apartment or a hotel room.’ ” Piazzola, 442 F.2d at 288 (quoting Com. v. McCloskey, 217 Pa.Super. 432, 272 A.2d 271, 273 (1970)).`”It certainly offers its occupant a more reasonable expectation of freedom from governmental intrusion than does a public telephone booth.”’ Id. Courts have widely agreed that a dorm room is a home away from home. Dorm personnel can—by virtue of contract—enter dorm rooms and examine, without a warrant, the personal effects of students that are kept there in order to maintain a safe and secure campus, or to enforce a campus rule or regulation; the students nevertheless enjoy the right of privacy and freedom from an unreasonable search or seizure. See Grubbs, 177 S.W.3d at 318; People v. Superior Court, (Walker) 143 Cal.App. 4th 1183, 1209, 49 Cal.Rptr.3d 831 (Cal. Ct. App. 2006); Beauchamp v. State, 742 So.2d 431, 432 (Fla. Dist. Ct. App. 1999); Com. v. Neilson, 423 Mass. 75, 666 N.E.2d 984, 985-86 (1996); Morale v. Grigel, 422 F.Supp. 988, 997 (D.N.H. 1976); Smyth v. Lubbers, 398 F.Supp. 777, 786 (W.D. Mich. 1975); People v. Cohen, 57 Misc.2d 366, 292 N.Y.S.2d 706, 713 (Dist. Ct. 1968), aff'd, 61 Misc.2d 858, 306 N.Y.S.2d 788 (Sup. Ct. 1969). The student is the tenant, the college the landlord. As the court of appeals put it: `Appellee enjoyed the same Fourth Amendment protection from unreasonable searches and seizures in her dormitory room as would any other citizen in a private home.’ Rodriguez, ––– S.W.3d at ––––, 2015 WL 5714548, at *4.

State v. Rodriguez, supra.

For these and other reasons, the appellate court found that

we are not asked to weigh in on the legality of the initial search by the RAs pursuant to the student housing agreement. Rather, we are asked to decide whether a subsequent search by law enforcement at the implied invitation of university officials violated the Fourth Amendment. We hold, as the court of appeals did, that Appellee 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. Consequently, we affirm the Court of Appeals.

State v. Rodriguez, supra.