Official Opinion 94-13
Board of Regents
A college may not rely absolutely on a contractual provision in a dormitory contract to conduct a search of a student's dormitory room in the absence of a valid warrant or consent.
You have asked for my official opinion on whether a provision in a housing contract which allows a university or college under the management of the Board of Regents of the University System of Georgia to enter a student's dormitory room for inspection, improvement or repairs, control in an emergency and "for any other purpose in accordance with College policy" will allow warrantless searches of dormitory rooms for weapons and drugs.
The starting point is the Fourth Amendment to the United States Constitution which protects an individual's right to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The first inquiry is whether the student has a "reasonable expectation of privacy" in his dormitory room so as to fall under the protection of the Fourth Amendment. Katz v. United States, 389 U.S. 347 (1967).
Several courts have dealt with that issue and determined that a dormitory room is analogous to an apartment or hotel room and therefore, there is a reasonable expectation of privacy in that room. See, e.g., Piazzola v. Watkins, 442 F.2d 284, 288 (5th Cir. 1971). Some courts have held that the existence of a
paragraph in the student housing contract stating that the room is subject to inspection does not waive constitutional protection. Smyth v. Lubbers, 398 F. Supp. 777, 791 (W.D. Mich. 1975). In fact, if a college enforces such a regulation and uses the fruits of the search as evidence in a student disciplinary proceeding, the regulation may be held constitutionally invalid. Id. But see Moore v. Student Affairs Comm. of Troy State Univ., 284 F. Supp. 725, 729 (M.D. Ala. 1968).
The inquiry does not end with a determination that the occupant of a dormitory room is entitled to Fourth Amendment protection. The Fourth Amendment protects only against unreasonable searches. Moore v. Student Affairs Comm. of Troy State Univ., 284 F. Supp. 725, 731 (M.D. Ala. 1968). A college may, in the exercise of its authority and duty to "maintain an atmosphere on campus which is conducive to the educational function," conduct searches. Id. at 729. In deciding whether the Fourth Amendment has been violated, the rights of individuals to be free from unreasonable searches is balanced against the valid governmental interest in protecting the safety of and delivering an education to the entire student body. See Moore, supra, and State v. Young, 234 Ga. 488, 494 (1975).
In Moore, the court reasoned that if the action of college authorities, pursuant to a regulation authorizing warrantless searches of dormitory rooms, "is necessary in aid of the basic responsibility of the institution regarding discipline and the maintenance of an 'educational atmosphere,' then it will be presumed facially reasonable despite the fact that it may infringe to some extent on the outer bounds of the Fourth Amendment rights of students." Moore, 284 F. Supp. at 729. Accord State v. Hunter, 831 P.2d 1033, 1036 (Utah 1992).
Other courts have held that the existence of such a regulation does not render the search reasonable. Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971) (Involved the exact same search that was held valid in Moore). While these various holdings cannot be conclusively reconciled, it is worthwhile to point out the factors which may incline a court to hold that a search is reasonable.
If the search is conducted initially for some health or safety reason and evidence of a crime is incidentally discovered, it is quite different than if the primary purpose of the search is a criminal prosecution. For instance, in the Hunter case, school officials found stolen school property in plain view in a student's room when they entered to investigate after notice to the students on the floor that a search would take place if the repeated instances of vandalism on that floor did not cease. School officials believed that the acts of vandalism and theft were the result of violations of school policy regarding explosives and alcohol. 831 P.2d at 1034.
By comparison, in the Piazzola case, law enforcement officials came to the school looking for evidence of illegal drug use and law enforcement officials searched for evidence of illegal drug use under the aegis of the school's authority. Closely related to the factor of why the search is conducted is whether the search is conducted by school officials or by law enforcement officials. Again, a comparison of the Hunter case and the Piazzola case highlight the presence of law enforcement officials as a factor likely to cause a court to hold that a warrantless, consentless search is unreasonable.
Another critical factor is whether the evidence seized is used in a criminal prosecution as opposed to a school disciplinary hearing. See State v. Young, 234 Ga. 488, 494 (1975). In the Moore case the evidence was used in a school disciplinary proceeding while the Piazzola case, involving the same search, was a challenge to the use of the illegally seized evidence in a criminal prosecution against the students. But see State v. Hunter, supra, and Smyth v. Lubbers, supra.
In short, determinations of the reasonableness of a search under the Fourth Amendment must be decided on a case by case basis and it is not possible to say conclusively which searches are permissible. However, if the college makes sure that it always has a particularized educational reason to search, that it gives notice, and that it conducts the search on its own pursuant to a valid regulation or contract in order to take student disciplinary action, it can be fairly assured of the search being valid. However, if the college has law enforcement officials aid in the search and it is a generalized sweep in search of evidence that criminal laws have been violated, chances are the search will be invalid.
In summary, it is my official opinion that a college may not rely absolutely on a contractual provision in a dormitory contract to conduct a search of a student's dormitory room in the absence of a valid warrant or consent.
KATHRYN L. ALLEN
Senior Assistant Attorney General