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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Neilson, 423
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
Matthew J. Mullaney,
Assistant District Attorney, for Commonwealth.
Michael P. McEvilly,
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY,
JJ.
LYNCH, Justice.
The
defendant, Eric W. Neilson, is charged with illegal possession of marihuana and
cultivating and distributing marihuana, in violation of G.L.
c. 94C, §§ 32C, 34 (1994 ed.). A
District Court judge allowed the defendant's motion [423
1. Facts.
The motion judge did not recite the detailed findings, but there is no
dispute as to the following facts. At
the time of his arrest, the defendant was a twenty‑three year old student
living in a dormitory at Fitchburg State College, a public institution. Before moving into the dormitory, the
defendant signed a residence hall contract, which stated, in relevant part,
that "[r]esidence life staff members will enter
student rooms to inspect for hazards to health or personal safety." (FN1)
On the
morning of
That
night, the officials returned; the
defendant was not present. While
searching the defendant's bedroom, the officials noticed a light emanating from
the closet. The officials, fearing a
fire hazard, opened the closet door.
There, they discovered two four‑foot tall marihuana plants, along
with lights, fertilizer, and numerous other materials for marihuana cultivation
and use.
The
officials stopped their investigation at that point, and requested the
assistance of the Fitchburg State College campus police, who have powers of
arrest. G.L.
c. 22C, § 63 (1994 ed.). The police
arrived at the suite, entered the bedroom, and observed the marihuana plants
and other apparatus. [423 Mass. 77] They took photographs of
the evidence and then, with the help of the college officials, removed it from
the room. At no time did the police
seek, obtain, or possess a warrant for the search.
2. Discussion. The District Court judge ruled that the warrantless search of the dormitory room by the campus
police violated the defendant's constitutional rights and that all evidence
obtained as a result of the search should be suppressed. We affirm that conclusion for the reasons set
forth below.
[1][2][3][4]
The right (FN2) to be free from unreasonable searches and seizures as
guaranteed by the Fourth Amendment to the United
States Constitution applies when the police search a dormitory room in a public
college. See Morale v. Grigel, 422 F.Supp. 988, 997 (D.N.H.1976) ( "dormitory room is a
student's home away from home"); Commonwealth v. McCloskey, 217 Pa.Super. 432, 435, 272 A.2d 271 (1970) ("dormitory
room is analogous to an apartment or a hotel room"). See also
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506, 89 S.Ct.
733, 736, 21 L.Ed.2d 731 (1969) (students do not "shed their
constitutional rights ... at the schoolhouse gate"). To be reasonable in the constitutional sense,
a search usually must be supported by probable cause and be accompanied by a
search warrant, unless there are circumstances excusing the use of a
warrant. See Pasqualone v. Gately,
422 Mass. 398, 401‑402, 662 N.E.2d 1034 (1996); Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 226, 588 N.E.2d 643
(1992). (FN3)
[5][6] The
probable cause and warrant requirements are relaxed, however, in the case of
searches that occur in elementary and secondary public schools. See New
Jersey v. T.L.O., 469 U.S. 325, 341‑342,
105 S.Ct. 733, 733‑734, 83 L.Ed.2d 720 (1985);
Commonwealth v. Carey, 407 Mass. 528, 533‑534, 554 N.E.2d 1199
(1990). There is no constitutional
violation when a high school official conducts a warrantless
search that is "reasonable in all the circumstances." Id.
at 533, 554 N.E.2d 1199. This reduced
standard was prompted by "[c]oncerns about
school officials' [423 Mass. 78] vital responsibility to preserve a
proper educational environment" and " '[t]he special need for an
immediate response to behavior that threatens either the safety of
schoolchildren and teachers or the educational process itself....' " Id.,
quoting Coffman v. State, 782 S.W.2d
249, 251 (Tex.Ct.App.1989). See New Jersey v. T.L.O.,
supra at 339‑340, 105 S.Ct. at 741‑742. See generally Camara v. Municipal Court of San Francisco,
387 U.S. 523, 534‑539, 87 S.Ct. 1727, 1736‑1737,
18 L.Ed.2d 930 (1967) (setting out Fourth Amendment balancing test for
administrative searches).
[7] The
Commonwealth urges us to extend the lesser protections afforded to high school
students into the collegiate arena.
Although the courts that have examined the issue are split on whether
the Fourth Amendment requires probable cause and a warrant in college searches,
(FN4) when police are involved and the evidence obtained is to be used in a
criminal proceeding, courts generally require probable cause and a warrant,
absent express consent or exigent circumstances. See Piazzola v. Watkins, 442 F.2d 284, 289 (5th Cir.1971);
People v. Cohen, 57 Misc.2d 366, 369, 292 N.Y.S.2d 706
(N.Y.Dist.Ct.1968); Commonwealth v. McCloskey, supra at 434‑436,
272 A.2d 271. Cf. People v. Haskins, 48 A.D.2d 480, 484, 369 N.Y.S.2d 869 (N.Y.1975)
("A more strict standard would certainly apply if the search had been
instigated by law enforcement officials or if law enforcement personnel had
participated in the search to any significant degree, thereby directly tainting
the search by the school official with State action"); State v. Hunter, 831 P.2d
1033, 1037 (Utah Ct.App.1992) ("Nor did university officials attempt to
delegate their right to inspect rooms to the police, which would result in the
circumvention of traditional restrictions on police activity"). See also
New Jersey v. T.L.O., supra at 341 n. 7, 105 S.Ct. at 743 n. 7 (not deciding whether probable cause and
a warrant might be required when police are involved in a high school search); Picha v. Wielgos, 410 F.Supp. 1214, 1219‑1221 (N.D.Ill.1976) [423
Mass. 79] <
[8] The defendant does not contend (and the
District Court judge did not find) that the initial search of the dormitory
room by college officials was improper.
The defendant consented to reasonable searches to enforce the college's
health and safety regulations when he signed the residence contract. See
Boston Hous. Auth. v. Guirola,
410 Mass. 820, 827‑828, 575 N.E.2d 1100 (1991). The hunt for the elusive feline fit within
the scope of that consent. See Commonwealth v. Cantalupo,
380 Mass. 173, 178‑179, 402 N.E.2d 1040 (1980). Similarly, when the college officials opened
the closet door they were reasonably concerned about health and safety. Thus, the initial search was reasonable
because it was intended to enforce a legitimate health and safety rule that
related to the college's function as an educational institution. (FN5)
See Piazzola
v. Watkins, supra at 289 (search must further legitimate educational
function); Morale v. Grigel,
supra at 998 (same); Smyth v. Lubbers, 398 F.Supp.
777, 790 (W.D.Mich.1975) (same). See
generally Annot., 31 A.L.R.5th 229, 337‑338
(1995).
[9]
Instead, the crux of the defendant's argument is that constitutional violation
occurred when the campus police searched the room and seized evidence. We agree.
The police entered the room without a warrant, consent, or exigent circumstances. This search was unreasonable and violated the
defendant's Fourth Amendment rights. The
Commonwealth contends that, since the college officials were in the room by consent,
and observed the drugs in plain view while pursuing legitimate objectives, the
police officers' warrantless entry was proper. Furthermore, the Commonwealth argues, the
police action was lawful because it did not exceed the scope of the prior
search and seizure by college officials.
We disagree.
First,
there was no consent to the police entry and search of the room. "The [defendant's] consent [was] given,
not to police officials, but to the University and the latter cannot
fragmentize, share or delegate it." People v. Cohen, supra. While the college officials were entitled to
conduct a health and safety inspection, they "[c]learly
... had no authority to consent to or join in a police search for evidence of
crime." Piazzola v.
Watkins, supra at 290.
[423 Mass. 80] Second, the plain view doctrine does not apply to the police
seizure, where the officers were not lawfully present in the dormitory room
when they made their plain view observations. Commonwealth v. Lewin (No. 1), 407 Mass. 617, 627, 555 N.E.2d 551
(1990). Cf. Commonwealth v. Franco, 419 Mass. 635, 641, 646 N.E.2d 749 (1995);
Commonwealth v. Viriyahiranpaiboon, supra
at 227‑228, 588 N.E.2d 643. While
the college officials were legitimately present in the room to enforce a
reasonable health and safety regulation, the sole purpose of the warrantless police entry into the dormitory room was to
confiscate contraband for purposes of a criminal proceeding. An entry for such a purpose required a
warrant where, as here, there was no showing of express consent or exigent circumstances. (FN6)
We
conclude that, when the campus police entered the defendant's dormitory room
without a warrant, they violated the defendant's Fourth Amendment rights. All evidence obtained as a result of that
illegal search was properly suppressed by the judge below.
Judgment affirmed.
(FN1.) Although the record does not contain a
signed copy of the residence contract, the parties do not dispute this fact.
(FN2.)
The defendant made no argument below that his rights under the Massachusetts
Declaration of Rights were greater than those provided under the Constitution
of the United States and therefore any such argument has been waived.
Commonwealth v. Carey, 407 Mass. 528, 531 n. 3, 554 N.E.2d 1199
(1990).
(FN3.)
"Probable cause for Fourth Amendment purposes means that there is reason
to believe that a crime has been committed and that evidence of the crime will
be found in the place to be searched." Commonwealth v. Snyder, 413 Mass. 521,
527 n. 4, 597 N.E.2d 1363 (1992).
(FN4.)
Compare Keene v. Rodgers, 316 F.Supp. 217 (D.Me.1970); Moore v. Student Affairs Comm. of Troy State
Univ., 284 F.Supp. 725 (M.D.Ala.1968);
State v. Kappes, 26 Ariz.App.
567, 550 P.2d 121 (1976); People v. Kelly, 195 Cal.App.2d 669, 16 Cal.Rptr. 177 (1961); State v. Hunter, 831 P.2d 1033, 1037
(Utah Ct.App.1992), with Piazzola v. Watkins, 442 F.2d 284, 289 (5th Cir.1971);
Morale v. Grigel, 422 F.Supp.
988, 997 (D.N.H.1976); Smyth v. Lubbers, 398 F.Supp.
777, 785 (W.D.Mich.1975); People v. Cohen, 57 Misc.2d 366, 369, 292
N.Y.S.2d 706 (N.Y.Dist.Ct.1968); Commonwealth v. McCloskey, 217 Pa.Super. 432, 435‑436, 272 A.2d 271 (1970).
(FN5.)
The college officials could have reported their observations to the police, who
could have used the information to obtain a warrant.
(FN6.)
The cases cited by the Commonwealth to support its position involve searches
initiated by private citizens and are therefore inapposite. See
United States v. Clutter, 914 F.2d 775, 779 (6th Cir.1990), cert. denied,
499 U.S. 947, 111 S.Ct. 1413, 113 L.Ed.2d 466 (1991);
United States v. Roberts, 644 F.2d 683, 688 (8th Cir.), cert.
denied, 449 U.S. 821, 101 S.Ct. 79, 66 L.Ed.2d 23
(1980);
United States v. Bomengo, 580 F.2d 173,
175‑176 (5th Cir.1978), cert. denied, 439 U.S. 1117, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979). Here, the Commonwealth concedes that the full‑time
employees of Fitchburg State College who conducted the initial search were
State actors.