Legal Issues in Higher Education Conference 2013

Searching Student Housing

All Rights Reserved: Lawrence F. Rossow-2013

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2013

A Motley Mix Of Consent, Balconies,

Seclusion,Video Cameras, Seizing

and Re-entry

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Fourth Amendment Verbatim The right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized

People not Places

“The Fourth Amendment protects people, not places.” Grubbs v. State, (Tex. App. Houston 1st Dist. 2005).

[U of H main campus dorm search]

Who are these people?

Students

When they are living in university owned and operated housing

Six New Cases

1. Clark v. State, 2012 WL 3025685 (Tex.App.-San Antonio).[University of Texas-San Antonio]

2. Vurimindi v. Fuqua School of Business, 435 Fed.Appx.129 (3d Cir.2011).[Duke University]

More new cases

3. State v. Miller, 2011 WL 1167181 (Ohio App. 6 Dist.).[Bowling Green University]

4. Jones v. Houston Community College System, 2011 WL 4625387 (S.D. Tex.).[HCC Health Sciences]

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New Cases Continued

5. Newman v. San Joaquin Delta Community College District, 2011 WL 3875652 (E.D. Cal.).[San Joaquin Delta Community College]

6. Medlock v. Trustees of Indiana University, 2011 WL 4068453 (S.D. Ind.).

[Indiana University – Bloomington]

Consent: when do you have it?

Clark v. State, 2012 WL 3025685 (Tex.App.-San Antonio)[University of Texas-San Antonio]

Can the student be “overborne”?

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UTSA wins

“[R]epeatly asking for consent does not result in coercion, particularly when the person refuses to answer or is otherwise evasive in his response.” at *6

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Intrusion Upon Seclusion

Vurimindi v. Fuqua School of Business, 435 Fed.Appx.129 (3d Cir.2011).

Can university searching activities constitute a Tort in the composite? Obtaining medical information Monitoring computer activity Obtaining bank information Shadowing and following

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Balcony Privacy?

State v. Miller, 2011 WL 1167181 (Ohio App. 6 Dist.).

Did students have an expectation of privacy while on the balcony of a fraternity house?

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Fraternity Victory

Students of Delta Tau Delta win!

Campus police entry into fraternity house was not exigent exception because of balcony safety.

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Hidden Cameras?

Jones v. Houston Community College System, 2011 WL 4625387 (S.D. Tex.).[HCC Health Sciences]

Two female campus security officers found hidden camera in changing area placed there by the administration.

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CAN NOT DO HIDDEN CAMERAS ON EMPLOYEES

EMPLOYEES WIN

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What’s in a Seizure?

Newman v. San Joaquin Delta Community College District, 2011 WL 3875652 (E.D. Cal.).

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Are they free to leave?

May campus police “aggressively detain” students who were disturbing a class?

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NO

STUDENT WINS THIS ONE

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Come back later?

Medlock v. Trustees of Indiana University, 2011 WL 4068453 (S.D. Ind.)

May university officials re-enter into a dorm room based on previous reasonalble suspicion?

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One for the College

Indiana University wins!

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Lessons for this year

1. Know “how” to get Consent.

2. Do not go overboard with Investigatory searching

3. Eyeballing suspected wrongdoing may not be enough

More Lessons

4. Do not install video surveillance cameras in places where there might be an expectation of privacy.

5. Pay close attention to variables when detaining students for questioning.

6. Know “Plain View” when you see it. 22

The End

Thanks for your attention

Larry Rossow

rossowl@uhv.edu