College Dorm Room Searches and the Law

Ithaca is fun because of it's size and isolation but that also creates a problem with privacy. It seems like everyone knows everyone else's business. I can't even tell you the level of town gossip let alone what is published daily on social media. Thousands of people are thrust together closely sharing rooms, apartments, homes, and dorms.

Privacy rights are sacred. We do have a fourth amendment that guards against government intrusion. There shall be NO unreasonable (illegal) search or seizure of your person or home.

Does that same law hold in your dormitory?

Does that same law apply to your on campus apartment? 

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 below for numerous cases

Can They Legally Search My College Dorm or Apartment?

Ithaca College and Cornell University have very strict conduct codes for a reason. The ultimate liability for anyone getting hurt on campus grounds falls on the University. Concerns to keep everyone healthy and safe are paramount.

If you read through all the agreements you sign with on campus housing one is very telling. It is an agreement between you, the student and the University which permits not only routine inspections but also inspections for health, welfare, and safety. Authorized persons (resident assistants) can enter your space to do routine inspections, and also if they have reason to suspect a violation is occurring.

Suspicions can be raised by known or unknown odors or lots of people coming and going (sounds normal) or social media posts.

New York Constructive Possession Presumption and Shared Housing

Common spaces and areas are shared by multiple people. If these areas contain drugs (prescription or illegal), drug paraphernalia, or alcohol potentially everyone in the unit can be charged with crimes. New York has a presumption under the law of constructive possession. Remember there are to kinds of possession, physical and constructive. Most people understand the physical but the constructive is a little more legal. New York's jury instruction (what a judge tells a jury) for constructive possession is very revealing.

New York's Constructive Possession Jury Instruction

POSSESS means to have physical possession or otherwise to exercise dominion or control over tangible property. Thus a person may possess property in either of two ways:

First, the person may have physical possession of property by holding it in his or her hand, or by carrying it in or on his or her body or person.

Second, the person may exercise dominion or control over property not in his or her physical possession. A person who exercises dominion or control over property not in his or her physical possession is said to have that property in his or her “constructive possession.”

Under our law, a person has tangible property in his or her constructive possession when that person exercises a level of control over the area in which the property is found, or over the person from whom the property is seized, sufficient to give him or her the ability to use or dispose of the property.

Additionally, the law recognizes the possibility that two or more individuals can jointly have property in their constructive possession. Two or more persons have property in their joint constructive possession when they each exercise dominion or control over the property by a sufficient level of control over the area in which the property is found or over the person from whom the property is seized to give each of them the ability to use or dispose of the property.]2

As you can read by the above that people sharing a unit, an apartment, or a dormitory can all be charged for possession of controlled substances, marijuana, etc. 

A Texas University Case That Sheds Some Light on Your 4th Amendment and College Dorms. 

Let's first separate out what the school can do, and then what the police can do. In other words, college actors versus government actors. There is a world of difference between violating the school's code of conduct and being charged with an administrative code complaint and being charged with a crime.

Crimes and JA (Judicial Administration Actions)

So the Texas case goes like this, a health (safety) inspection of a private Texas college dorm room turns up marijuana, ecstasy, and pipes. The RA (resident assistant) lays out all the discovered items and then calls the police. Police come and to the dorm and multiple criminal charges against the student follow. The case is State of Texas v. Mckenzie Renee Rodriguez, and what the court said:

Private citizens, even those with authority to enter like the resident assistants can't give the police an exception to the fourth amendment. The 4th Amendment's protection against illegal search and seizure by the government is not eroded by those working for the University. Now the remember that the college can still have (administrative) action against Ms. Rodriguez but the state of Texas cannot.

You Have a Expectation of Privacy in Your Dorm

You have an expectation of privacy in your dorm room. Ms. Rodriguez's attorney filed a motion to suppress this evidence and it was granted by the court and then upheld on appeal.

The Court of Criminal Appeals agreed with the court of appeals that the officers’ physical intrusion into a constitutionally protected area was a search within the meaning of the Fourth Amendment and because it was done without a warrant, consent, or special needs, the fruits of that search were rightly suppressed, that is the drugs and paraphernalia that were found. So Ms. Rodriguez would not be held to criminal charges and punishment. Getting kicked out of school was another matter entirely.

Most telling in the Rodriguez case was what the appellate court opined:

State v. Rodriguez,

           The court quoted this passage from Piazzola (Piazzola v. Watkins, 442 F.2d 284 (5th Cir.     

            1971):

`[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.’

Below is what Right to Privacy you have at an Ithaca College dorm or apartment. It's not as much as you may imagine it to be. The IC police are state police. They can enter a dorm with probable cause under state law. They (RAs, police, etc.) can also enter for health and safety reasons. As in, I smell or see smoke, or I heard someone cry out or yell, etc. 

Ithaca College 7.1.2.2.9 Right to Privacy

As amended by the Ithaca College Board of Trustees October 12, 2007.

Students are protected from arbitrary and capricious invasions of privacy and entry into their residences. Ithaca College reserves the right for personnel acting in the performance of their duties to enter student rooms, apartments, and suites in order to ensure that all health, safety, and fire codes are being followed, provide maintenance and repairs, respond to emergencies, and to locate missing property and/or prohibited articles. Such entries may reveal violations of the student conduct code or the residential life rules and regulations, which may result in fines and/or disciplinary action being taken against the student(s). Ithaca College cannot interfere with any sworn law enforcement official in conducting room searches if such a search is legal under state or federal law and is within the authorized performance of the official's duty.

+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).

Lawrence Newman is a partner in Newman and Cyr which focuses on DWI and criminal defense in the Fingerlakes region of New York State. contact larry@ithacacdwi.com