DECISION UPHOLDS RIGHT TO PRIVACY IN DORM ROOM

Tim Burke, Manley Burke, tburke@manleyburke.com

A court of appeals in the State of Washington recently issued a decision¹ which bodes well for the ability of students living in a fraternity house to protect their privacy while in the house.

A student at Washington State University was charged with residential burglary for stealing a guitar from another student’s room on a different floor of the dormitory in which he lived.  He was arrested after a police officer walked the floor of his dormitory and listened at the door to conversations inside his room.  The dormitory floor is generally off limits to all but residents of that floor unless they are guests of a resident.  It required a key unique to that floor to enter.  The police officer did not have the permission from any resident of that floor to be on the floor.

When confronted with the claim that the student had been arrested in violation of his Fourth Amendment rights against unauthorized search, the trial court found for the student and excluded all of the evidence seized in the student’s arrest and search of his room.  In reviewing that decision, the Court of Appeals found that it required a two-part analysis:

 “First, whether the individual has exhibited an actual subjective expectation of privacy, and second, whether the expectation is one society recognizes as reasonable.”

Nothng that previous courts have found that there is a privacy interest in the interior of an individual’s home, hotel room, motel room, room in a boarding house and dormitory rooms, the Court of Appeals found that the sixth floor hallway was also entitled to protection.

The Court cited with favor a federal court case from Illinois State University involving a fraternity house.²  In that case, the court noted that “… fraternity residents clearly have a greater expectation of privacy in the common areas of their residence than do tenants of an apartment building.”  Unlike apartment dwellers who, according to the Federal Court, are “simply co-tenants sharing certain common areas,” fraternity members were more like “roommates in the same house.”  The Washington Court ultimately held that the sixth floor hallway of the dormitory where the police officer had stood while listening at the door, was a private area.  “Because of the intimate nature of the activities in the hallway – most remarkably towel-clad residents navigating the hallways to and from the shared shower facilities – it is reasonable to hold that this area is protected.”

It must be recognized that a member’s expectation of privacy in the common areas of a fraternity house can be lost by another member of the house inviting or authorizing entry into the Chapter House.

¹  State of Washington v. Houvener, 186 P.3d 370 (2008).

²  Reardon v. Wroan, A11 F.2d 1025 (7^th Cir. 1987).