I have a research project I am working on, but keep coming to a dead end. The local university police dept is asking for guidelines when investigating cases on campus. They provided a copy of the lease for dorm and apartment on-campus housing. Buried on page 8 of a 10 page document, it says the university can go in and search their room if they suspect narcotics are there. (It is not a waiver, simply a statement.) I have searched on lexis, here, and AG opinions, and haven't found any cases involving college housing. Anyone have any help they can offer?

Seems like there was some favorable case law a few years ago involving HUD or Section 8 leases saying the same thing. Arguably, if your lease says other people can come in any time, you have a lessened expectation of privacy. If you want more privacy, rent off campus.

Now, entering may be different from taking the room apart once they enter.

There are several organizations of College Attorneys and Jr. College Attorneys (Kinda like our TDCAA but not as cool). My wife used to be member when she was general counsel for a couple of Jr. Colleges and ISDs. I'll check with her.

Thanks for your help John and Tuck! I'm gonna go find that section 8 case now.

Check the current version of the student handbook as well as the version that was issued at the time of the suspect's matriculation. Those documents sometimes contain similar "the university reserves the right to search on-campus housing anytime we see fit" language. Such language might provide additional support for the lessened expectation of privacy argument.

Colleges sometimes require students to submit written acknowledgement of (and agreement with) the handbook's policies. Ask your the campus housing department for those docs. More ammo for you.

Ok, I found the student handbook online. So, avoided having to wait for snail mail. Any other ideas or cases? JohnR, I wasn't able to find that HUD case. Do you remember the party name/s?

Ok, so I did some looking. There was some old news coverage about an attempt in Chicago to add that to Section 8 leases. I found no cases. Another avenue might be the Supreme Court case from a few years back where probationers could waive 4th Amendment via terms and conditions of probation.

Thanks, John. Makes me feel better about not finding the case. I'll look for the waiver case.

The Fourth Amendment protects people, not places. Katz, 389 U.S. at 351, 88 S. Ct. at 511. Indeed, courts have held that "a student who occupies a college dormitory room enjoys the protection of the Fourth Amendment." Piazzola v. Watkins, 442 F.2d 284, 289 (5th Cir. 1971); see Morale v. Grigel, 422 F. Supp. 988, 997 (D.N.H. 1976) (considering dormitory room to be "a home away from home"); Devers v. S. Univ. & A&M Coll., 712 So. 2d 199, 204-05 (La. Ct. App. 1998) (finding that "[a] dormitory room is a student's house for all practical purposes, and a student has the same interest in the privacy of his room as any adult has in the privacy of his home, dwelling, or lodging"). In the instant matter, appellant had an expectation of privacy in his dorm room and is thus afforded Fourth Amendment [**9] protection. In addition, the Court of Criminal Appeals has held that "the odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home." State v. Steelman, 93 S.W.3d 102, 108 (Tex. Crim. App. 2002) (analyzing warrantless entry under Code of Criminal Procedure provisions, but applying Fourth Amendment discussion in Johnson, 333 U.S. at 13-14, 68 S. Ct. at 369). However, the Court of Criminal Appeals has recently held that the odor of marihuana emanating from a home, among other things, provides police with probable cause to believe that criminal activity is occurring inside the home. Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005).

To support his contention that the R.A. entered his room unlawfully, appellant cited a provision in the Residence Hall Contract ("Contract") providing that, "the university reserves the right . . . to enter any room for the purpose of inspection, repair, cleaning, inventory, health and safety hazards, or other emergencies," and argued that there was no evidence that the R.A. entered his room for any of these purposes. The record supports appellant's assertion [**10] that the R.A. entered his room to investigate evidence of criminal activity, and not a fire.

However, the State provided other justification for the entry. The Contract also provides the following: The student agrees as a condition of this agreement to comply with all University and Student Housing rules, regulations, policies and procedural information, incorporated herein by reference to the "University Student Handbook," which are now in effect or are amended, or enacted during this term of agreement.Thus, appellant's conduct in his dorm room was not only governed by the Contract, but also by the provisions in the Student Handbook ("Handbook"). Appellant concedes on appeal that he was subject to these provisions.

The Handbook provides, under its Residential Life and Housing section, that "all University of Houston residents are expected to observe local, state, and federal laws. . . . The Handbook outlines the residents' responsibilities as members of the educational community." The following [*319] behaviors are prohibited in the residential community and are considered a violation of policy:

I. Alcohol/Drugs 1.1 Being present during or participating in the [**11] illegal use, [or] possession, . . . of drugs prohibited under the Controlled Substances Act of Texas.(Marihuana is a controlled substance. TEX. HEALTH & SAFETY CODE ANN. 481.032 (Vernon 2003)).

In addition, the Handbook includes University Policies ("Policies") under which "students may be subjected to searches and seizures as authorized by university policies and federal, state, and local laws." Further, the Policies provide that, in all cases involving public law, statutes, ordinances, student life policies, or university regulations, university action may be taken. . . . Violations occurring within the residence halls may be resolved by the appropriate residence halls staff and/or referred to the Dean of Students Office.An R.A. is a trained resident-hall staff member who is charged with resolving such violations in keeping with his duty to maintain community standards of behavior.

In maintaining such standards, the Handbook, Residential Life and Housing, Room Inspection Procedure, states: 1. University officials, including residence halls staff, . . . may enter rooms to fulfill their daily duties, in [**12] cases of emergencies, or in cases of reasonable suspicion of activity endangering the individual or the community.(Emphasis added.) Appellant concedes on appeal that he was subject to this provision.

In sum, the Handbook provides ample authority for the R.A.'s entry. Appellant agreed to abide by university policies outlined in the Handbook when he signed the housing Contract. The evidence supports the State's argument that the R.A. investigated the marihuana odor in accordance with his duties as an R.A. to monitor the safety of the people in the dorm rooms and to investigate possible disciplinary violations. As discussed above, appellant contracted this investigatory right to the university. Hence, he waived any Fourth Amendment objections to the university's reasonable exercise of that right. See Utah v. Hunter, 831 P.2d 1033, 1037 (Utah Ct. App. 1992) (concluding that by signing residence hall contract prohibiting the possession or consumption of alcohol and reserving the right to enter and inspect in order to enforce the regulations at any time "to protect and maintain the property of the University, the health and safety of its students, or whenever [**13] necessary to aid in the basic responsibility of the University regarding discipline and maintenance of an educational atmosphere," the student waived any Fourth Amendment objections to university's exercise of that right). The constitutionality of the policy on its face is not at issue.


Grubbs v. State, 177 S.W.3d 313, 318-319 (Tex. App. Houston 1st Dist. 2005)

Thank you! You are awesome!