Legal Issues in Higher Education Conference 2013 Searching Student Housing Searching Student Housing All Rights Reserved: Lawrence F. Rossow

2013 A Motley Mix Of Consent, Balconies, Seclusion, Video Cameras, Seizing and Re-entry 2

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, supportedby 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 (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 (Ohio App. 6 Dist.). 3. State v. Miller, 2011 WL (Ohio App. 6 Dist.). [Bowling Green University] 4. Jones v. Houston Community College System, 2011 WL (S.D. Tex.). 4. Jones v. Houston Community College System, 2011 WL (S.D. Tex.). [HCC Health Sciences] 7

New Cases Continued 5. Newman v. San Joaquin Delta Community College District, 2011 WL (E.D. Cal.). [San Joaquin Delta Community College] 6. Medlock v. Trustees of Indiana University, 2011 WL (S.D. Ind.). [Indiana University – Bloomington] [Indiana University – Bloomington]

Consent: when do you have it? Clark v. State, 2012 WL (Tex.App.- San Antonio) [University of Texas-San Antonio] Can the student be “overborne”? Can the student be “overborne”? 9

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 “[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 10

Intrusion Upon Seclusion Vurimindi v. Fuqua School of Business, 435 Fed.Appx.129 (3d Cir.2011). Vurimindi v. Fuqua School of Business, 435 Fed.Appx.129 (3d Cir.2011). Can university searching activities constitute a Tort in the composite? Can university searching activities constitute a Tort in the composite? Obtaining medical information Obtaining medical information Monitoring computer activity Monitoring computer activity Obtaining bank information Obtaining bank information Shadowing and following Shadowing and following 11

Balcony Privacy? State v. Miller, 2011 WL (Ohio App. 6 Dist.). State v. Miller, 2011 WL (Ohio App. 6 Dist.). Did students have an expectation of privacy while on the balcony of a fraternity house? Did students have an expectation of privacy while on the balcony of a fraternity house? 12

Fraternity Victory Students of Delta Tau Delta win! Students of Delta Tau Delta win! Campus police entry into fraternity house was not exigent exception because of balcony safety. Campus police entry into fraternity house was not exigent exception because of balcony safety. 13

Hidden Cameras? Jones v. Houston Community College System, 2011 WL (S.D. Tex.). [HCC Health Sciences] Two female campus security officers found hidden camera in changing area placed there by the administration. 14

CAN NOT DO HIDDEN CAMERAS ON EMPLOYEES EMPLOYEES WIN EMPLOYEES WIN 15

What’s in a Seizure? Newman v. San Joaquin Delta Community College District, 2011 WL (E.D. Cal.). Newman v. San Joaquin Delta Community College District, 2011 WL (E.D. Cal.). 16

Are they free to leave? May campus police “aggressively detain” students who were disturbing a class? May campus police “aggressively detain” students who were disturbing a class? 17

NO STUDENT WINS THIS ONE STUDENT WINS THIS ONE 18

Come back later? Medlock v. Trustees of Indiana University, 2011 WL (S.D. Ind.) Medlock v. Trustees of Indiana University, 2011 WL (S.D. Ind.) May university officials re-enter into a dorm room based on previous reasonalble suspicion? May university officials re-enter into a dorm room based on previous reasonalble suspicion? 19

One for the College Indiana University wins! Indiana University wins! 20

Lessons for this year 1. Know “how” to get Consent. 1. Know “how” to get Consent. 2. Do not go overboard with Investigatory searching 2. Do not go overboard with Investigatory searching 3. Eyeballing suspected wrongdoing may not be enough 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. 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. 5. Pay close attention to variables when detaining students for questioning. 6. Know “Plain View” when you see it. 6. Know “Plain View” when you see it. 22

The End Thanks for your attention Thanks for your attention Larry Rossow Larry Rossow