FN1.   Morale v. Grigel, 422 F. Supp. 988, 997 (D.N.H. 1976).


FN2.   In rare instances, usually involving searches by student resident advisors at a public university, courts have held that the search was conducted by “private persons” and thus Fourth Amendment constraints did not apply.  See, e.g., State v. Kappes, 550 P.2d 121, 124 (Ariz. Ct. App. 1976).


FN3.   For a general overview of warrantless searches and seizures, see Wayne R. LaFave, Search & Seizure 4.1(b) (4th ed. 2004).


FN4.    See LaFave, Search & Seizure 2.2 (“As a general proposition . . . when a law enforcement officer is able to detect something by utilization of one or more of his senses while lawfully present at the vantage point where those senses are used, that detection does not constitute a ‘search’ within the meaning of the Fourth Amendment.”).  In other words, if officers have lawfully entered a room for one purpose and then see contraband unrelated to that purpose lying in plain view (e.g. openly on a desk), they may seize the contraband unrelated to having to obtain a new warrant.


FN5.   Note that in the case of roommates, the Supreme Court’s decision in Georgia v. Randolph, 547 U.S. 103 (2006), would appear to permit the refusal of a roommate who is physically present at the time of the warrantless search to prevail over another roommate’s consent.


FN6.   See, e.g. Smyth v. Lubbers, 398 F. Supp. 777, 784 (W.D. Mich. 1975).


FN7.   Fruit of the poisonous tree” is a term used to describe evidence gathered as a direct consequence of information obtained illegally by law enforcement.  Such evidence is generally excludable by the defendant, subject to certain exceptions.  See LaFave, Search & Seizure 1.1, 1.6, 11.4.


FN8.   See, e.g., Commonwealth v. Catanzaro, 803 N.E.2d 287, 294-95 (Mass. 2004).


FN9.   Piazzola v. Watkins, 442 F.2d 284, 289 (5th Cir. 1971) (noting that blanket Fourth Amendment waivers represent an unconstitutional condition that cannot be enforced); Devers v. Southern Univ., 712 So.2d 199, 206 (La. Ct. App. 1998) (holding that a state “cannot condition attendance at one of its schools on [a] student’s renunciation of his constitutional rights”).


FN10.  666 N.E.2d 984 (Mass. 1996).


FN11.  See United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007); Piazzola, 442 F.2d at 289; Smyth, 398 F. Supp. at 786; Limpuangthip v. United States, 932 A.2d 1137, 1142 (D.C. 2007); People v. Walker, 143 Cal. Rptr. 3d 831, 848-49 (Cal. Ct. App. 2006), Beauchamp v. State, 742 So.2d 431, 432 (Fla. Dist. Ct. App. 1999); Devers, 712 So.2d at 204-05; Commonwealth v. McCloskey, 272 A.2d 271, 273 (Pa. Super. Ct. 1970).  See also State v. Houvener, 186 P.3d 370, 373-74 (Wash. Ct. App. 2008) (recognizing a student’s reasonable expectation of privacy not just in his room, but also in his “living group hallway” or “living group floor”).


FN12.  See Piazzola, 442 F.2d at 288 (quoting McCloskey, 272 A.2d at 273).


FN13.  See Walker, 143 Cal. Rptr. 3d at 849 (“[Housing contract] terms of occupancy, while constituting consent to the University’s entry into defendant’s dorm room under certain circumstances, cannot be reasonably construed as defendant having given consent to others.” (emphasis in original)).


FN14.  See Devers, 712 So.2d at 206 (“The [dormitory] search must further an interest that is separate and distinct from that served by Louisiana criminal law.”); Morale, 422 F. Supp. at 998 (“Defendants have not convinced this court that [the university] has a clearly distinguishable and separate educational interest [in the search], nor one that is not already served by the penal statutes of this state.”).



FN15.  See, e.g., State v. Hunter, 831 P.2d 1033, 1037-38 (Utah Ct. App. 1992) (distinguishing between searches conducted on the authority of college officials to “maintain an educational atmosphere” and searches conducted “at the behest of or as part of a joint investigation with the police”).


FN16.  See Grubbs v. State, 177 S.W.3d 313 (Tex. Ct. App. 2005) (thorough discussion of the college official vs. law enforcement distinction, as well as the import of express consent at time of search).


FN17.  See, e.g., State v. Nemser, 807 A.2d 1289, 1291 (N.H. 2002).


FN18.  Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982) (finding that a private school specializing in the education of students with substance abuse and behavioral difficulties was not a “state actor,” even though its students were referred by public agencies, the school received nearly all of its funding from public sources, it was subject to considerable public regulation, and it was performing a public function).


FN19.  See, e.g., State v. Burroughs, 926 S.W.2d 243, 246 (Tenn. 1996); Duarte v. Commonwealth, 407 S.E.2d 41, 42-43 (Va. Ct. App. 1991).


FN20.  Logiodice v. Trs. of Me. Cent. Inst., 296 F.3d 22, 26 (1st Cir. 2002).  Other jurisdictions employ similar formulations of the “state action” test.  See, e.g., Nemser, 807 A.2d at 1291-93 (finding no agency relationship between campus and local police because there was no “inducement” or “agreement” that campus police conduct drug searches on behalf of local police); People v. Boettner, 362 N.Y.S.2d 365, 368-69 (N.Y. Sup. Ct. 1974), affirmed, 376 N.Y.S.2d 50 (N.Y. App. Div. 1975) (finding no agency relationship where state police “neither expressly nor impliedly requested” that campus police conduct a search of defendants’ rooms, and where there was no “close and continuing relationship” between campus police and local/state law enforcement).


FN21.  See, e.g., Mass. Gen. Laws ch. 22C, 23 (imbuing employees at educational institutions who have been appointed “special state police officers” with “the same power to make arrests as regular police officers for any criminal offense committed in or upon lands or structures owned, used or occupied by such college, university, or other institution . . . .”); Mich. Comp. Laws 338.1079 (similar); D.C. Code 5-129.2, 23-582(a) (similar).


FN22.  Cf. Harvard Crimson, Inc. v. President & Fellows of Harvard Coll., 840 N.E.2d 518, 524-25 (Mass. 2006) (“The fact that some individual [Harvard University Police Department] officers have been appointed deputy sheriffs, or special State police officers, does not transform the [University Police Department], itself, into an agency of the Commonwealth . . . .”).


FN23.  Limpuangthip, 932 A.2d at 1145-46 (“While the fact that [a special police officer] wore a uniform and carried a baton and a radio, as occurred here, may be a relevant factor, it does not of itself amount to an assertion of state authority. More is required.”).