Search and Seizure Considerations in University-Owned Housing: Implications for Practice

Journal of College Student Development, May/Jun 1998 by Parrish, Bradley W, Dickman, Marcia M, Fern, Michael Scott

PUBLIC VERSUS PRIVATE INSTITUTIONS

The case law relevant to searches at public institutions differs in some instances from the case law relevant to searches at private institutions. The Morale ( 1976) case established that staff members at public institutions may be considered to be agents of the state when conducting searches, even when acting independently of law enforcement personnel. Courts addressing the issue of searches at private institutions have historically and consistently held that those staff members cannot be considered to be acting as agents of the state under similar circumstances. In People v. Boettner (1974), the court held that searches of student rooms at a private institution conducted by university officials were not subject to Fourth Amendment considerations. Although the New York State Police had given university officials the information that the students might have been in possession of marijuana, "the State Police had no knowledge of and did not participate, directly or indirectly, in the search conducted by (school) officials.... The State Police neither expressly or impliedly requested that (school officials) conduct a search of defendants' rooms" (p. 369); therefore, "it cannot be said that (school) officials who decided on their own to search defendants' rooms were acting as agents, either actual or implied, of law enforcement" (p. 369).

In Duarte v. Commonwealth (1991), the court determined that officials at a private school in Virginia were acting as private persons when they conducted a search for contraband or stolen property pursuant to the guidelines in their student handbook. The local police were aware that school officials intended to search a student's room, but they specifically asked college officials not to search, as it might interfere with the police investigation. The court ruled that "the fourth amendment protections against unreasonable searches and seizures are wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official" (p. 42). The court also stated that for Fourth Amendment protections to take effect, "a defendant must demonstrate the contested search or seizure was conducted by an officer of the government or someone acting at the government's direction rather than a private individual acting on his own initiative" (emphasis added, p. 42). The court in State v. Burroughs (1996) used similar reasoning to reach a similar decision, ruling that "a party is subject to the Fourth Amendment only when he or she has formed the necessary intent to assist the government's investigative or administrative function. However . . . the Fourth Amendment will not apply when the private party was acting for a reason independent of such a governmental purpose" (p. 246).

Another case which may be helpful in determining whether a search is governmental or administrative is United States v. Walther (1981). In that case, the court developed two criteria for determining whether an individual acts as an instrument or agent of the government: "( 1 ) the government's knowledge and acquiescence, and (2) the intent of the party performing the search" (p. 792). Under these criteria, an official at a private institution would need to conduct a search under the direction or with the cooperation of law enforcement personnel before Fourth Amendment provisions would attach, whether the search is for evidence of internal policy violations or for instruments of illegalities. These criteria notwithstanding, Valente (1985) points out that some limitations may still be placed on the actions of private school officials. Valente stated that "the law does not preclude a court from finding a purely arbitrary or excessive search that would exceed the fair contract authority of the school" to be unreasonable, which could "possibly support a tort action of unprivileged trespass" (p. 374). Obviously, although officials at private institutions have greater latitude than their public school counterparts, reasonableness and discretion must remain the orders of the day.