- by Jack Ryan
Legal & Liability Risk Management Institute

Question Presented: If a weapon is found in a dorm room during a health and welfare check by a dorm supervisor, can the police prosecute the offender? Police officers are not doing the search they are just standing outside of rooms watching.

Short Answer:  As a general matter, resident assistants; dorm supervisors, and the like are not bound by the 4th Amendment in the same manner as police officers.  They generally are operating pursuant to a provision in the university/college handbook which allows for the health and welfare check, which, at the same time, diminishes or eliminates the expectation of privacy of the dorm resident.  It is important to note that resident assistants/dorm supervisors in a private college/university are not bound by the 4th Amendment since they are not government actors.  Thus, in the private university setting there is no constitutional issue when dealing with a seizure by a resident assistant of dorm supervisor.

Two final observations must be noted: First, anytime you have a search which is directed by the police, the 4th Amendment law enforcement standard will apply either in the public institution or the private institution.  Second, some private institutions have a state authorized police department.  In those cases, the police officers on campus will be bound by the Constitution notwithstanding the fact that they are employed by a private entity since they derive their authority from state law. 

Authority for Answer:

In Ohio v. Ellis,ⁱ  an appellate court in Ohio examined a case that involved all of the essential points of the question presented.   "Sherman Ellis, on October 7, 2004 was a student attending Central State University. The Defendant was residing on campus in a dormitory room located at 332 Foundation Hall on the campus of Central State University, Wilberforce, Greene County, Ohio. As a student at Central State University the Defendant was subject to the safety and security policies and procedures set forth by the University… Further testimony was given indicating the Defendant had agreed to recognize and be subject to the safety and security policies and procedures while a resident on the campus at Central State University. Further, the Court finds that the Defendant is not contesting the applicability of the safety and security policies and procedures set forth herein.

Pursuant to these safety policies and procedures a resident assistant in the dormitory in which the Defendant resided was acting in accordance with the Resident's Hall Health and Safety checks portion of the policy and procedure by entering the room of the Defendant to conduct an unannounced safety inspection. These inspections were done on a regular basis by resident assistants and were not performed for the purpose of obtaining evidence solely for the purpose of criminal prosecution. These searches were conducted consistent with the policies and procedures set forth by the University.

Upon entering the room, and joined shortly thereafter by another resident assistant, a beer can was discovered on a desk top.  Possession of alcoholic beverages is a violation of the University policies and procedures.  During the course of obtaining the beer the resident assistants observed an open drawer in the desk and could smell as well as see bags as what [the resident assistant] referred to as weed which he identified as marijuana.

Central State University police officers were then notified, who upon their later arrival observed while the resident assistants completed their safety search and inspection. As a result of the inspection and search the resident assistants turned over several items obtained from the dormitory to the Central State Police Department. While the police officers were at the dormitory after being notified, they did not participate in the search which was conducted by the resident assistants. The resident assistants conducted the administrative search pursuant to the Resident's Hall Health and Safety checks pursuant to the University residence policies and the code of student conduct."

In its review of the case, the court made two significant conclusions regarding these dorm room searches. First: “The evidence presented in this case demonstrates that the University's Resident Assistants entered Defendant's dormitory room and the rooms of other students to determine whether students were bringing prohibited items such as alcohol or drugs to their rooms, a common occurrence during the school's homecoming celebrations. The search was conducted in accordance with Central State University's policies and procedures governing residence halls, which authorizes the Residence staff to inspect student rooms at any time to determine compliance with the University's safety and hygiene policies governing residence halls. Therefore, as the trial court found, the search the Resident Life staff performed which yielded the marijuana that campus police seized was an administrative search by private persons, and therefore not a search subject to the Fourth Amendment’s warrant requirement.”

The second conclusion dealt with law enforcement’s entry into the room to seize the items of evidence.  Here, the court found that the resident assistants were not acting as agents of law enforcement when they conducted their initial search and finished their search in the presence of law enforcement officers.  The court found a problem however with the fact that the officers entered the dorm room without a warrant and took possession or seized the evidence from within the dorm room where the resident assistants had placed the items.  The court indicated that the police should not have entered the room and seized the items without a warrant. 
Key Points:

Colleges/Universities may have rules that allow for health/safety exceptions.  These inspections, conducted by non-law enforcement personnel and which have no criminal investigation purpose do not violate the 4th Amendment when conducted pursuant to a college/university rule.  These searches fall under the auspices of administrative searches which have a much lower threshold than criminal investigation searches.

Items located and seized by resident assistants may be turned over to law enforcement and may be used in a criminal prosecution.

If law enforcement, in any way directs the search, the resident assistants become agents of law enforcement thus requiring that all criminal investigation rules, i.e. warrant, exigency or consent, be met before entry is made, before search is conducted or before items are seized.

If law enforcement personnel want to enter the dormitory room they must first meet the criminal investigation requirements of warrant, exigency or consent.

A case from the United States Court of Appeals for the District of Columbia Circuit demonstrates how the search of a dormitory room at a private university which also involves police may be treated.  In Limpuangthip v. United States,ⁱⁱ the court examined a case where special police officers at George Washington University received an anonymous tip concerning drugs in a student’s dormitory room.  The special police turned this information over to administrators responsible for enforcing the university’s code with respect to the dormitories.

Ms. Davis, an administrator responsible for three dormitories responded to the student’s room to conduct the search.  She called the special police officers to provide a master key to the room and to stand by.  She reported that she could have obtained the key in another way.  Ms. Davis testified that the purpose of her search "was to identify any health or safety hazards, to identify any problematic activities that might be occurring in the residence hall," not to "collect evidence for a criminal case."  She reported that she called for university police in order that they may provide security and evidence bags during the search.  The student in this case had signed for the following University policy:  “The University reserves the right for authorized representatives of the University to enter premises at any time for repair or maintenance of the premises or the inspection thereof pursuant to University rules and regulations. The University further reserves the right to inspect a room at any time and its contents for violations of University or residence hall regulations including but not limited to possession illegal substances believed by staff to be illegal or conducting activities that could endanger life, safety, order or welfare of members of the University community.”

In examining the actions of the officers involved in the case, the court noted that if the officers had acted like police officers then state action may have occurred.  In deciding that no state action occurred the court noted that the officers in this case stood passively by as Ms. Davis did all the talking and conducted the search.  The court further recognized that from the minute Ms. Davis received the information, she took charge and directed all action.  In view of these factors, the fact that the officers were present, in uniform, with badges and other police equipment, did not create state action.  The court was also impressed with the University policy which indicated that the police were to have no involvement in these administrative searches.  The court concluded that the 4th Amendment was not implicated in this search of dormitory room in a private university.

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