Whether college police improperly entered a dorm room without consent or a warrant, on reports of conduct that violated the residence policy but not the law.

Resident directors for a Boston College dorm brought two students to campus police with a report that defendant Daniel Carr was bullying them and boasted of having a knife, and that a third student who wished to remain anonymous had seen a (possibly fake) gun in Carr’s dorm room. The residence policy signed by the defendants provided that no weapons, real or fake, could be kept in dorm rooms, and that the college could conduct plain view searches to enforce health and safety rules.

Around midnight, two resident directors and three officers went to the dorm room. The officers, Boston College employees, were in police uniform and visibly armed. As soon as the door was opened, one of the officers entered without permission. In the room were Carr and defendant John Sherman, and a third non-resident who the officer asked to leave. The officer read Carr and Sherman Miranda rights, asked if they had weapons, and recovered the toy gun and several knives. He then asked the defendants to sign forms consenting to a thorough search. The search resulted in substantial quantities of drugs and a list of names and amounts of money.

The motion judge found that the officers had unlawfully entered the dorm room, tainting any subsequent consent, and therefore granted the defendants’ motions to suppress the seized evidence. The Commonwealth sought interlocutory review and the Appeals Court reversed. The SJC granted the defendants’ request for further appellate review.

It is relatively clear that, if the officers were not college employees, the unconsented entry would have been unlawful—at a minimum, there was no probable cause to believe that evidence of a crime would be found within. On the other hand, it is also clear that the resident directors could have entered without permission to conduct a plain view search for real or fake weapons under the residence policy. The question is how to analyze the actions of the officers, who were agents of the state but also employees of the college.

The Appeals Court applied the standard of Commonwealth v. Leone, 386 Mass. 329, 367 (1982), which involved a private security guard at an industrial plant who was also a special police officer. The Court held that the officers’ conduct in entering the room was private, rather than state, action, because it was under the control of the resident directors, aimed at preventing a violation of the residence policy rather than finding evidence of criminal activity, and conducted in a reasonable manner.

The defendants argue that the conclusion that the officers were engaged in private conduct is inconsistent with the facts of their entry—armed, uniformed police entering a dorm room at midnight and issuing Miranda warnings—and that the Appeals Court analysis would eviscerate constitutional protections for students, by allowing colleges to put any law enforcement investigation under the heading of private activity.

This is a very hard case. At bottom, however, it seems that the Appeals Court transformed the defendants’ permission for college staff to conduct plain view searches of rooms into permission for armed, uniformed police to enter their room at midnight without consent, Mirandize and interrogate them. The conclusion that the officers in that situation did not need permission to enter because they were also college staff conducting a plain view search seems untenable. While the officers may be staff, they are, concurrently, agents of the state. The Appeals Court analysis would instead have them veer back and forth through the status of state and private actor during the course of their duties. While it is of course necessary for colleges to vigorously investigate potential threats by and against students, it does not seem that either consent or exigent circumstances justified the steps taken in this case.