Kentucky Supreme Court Rules That Fraternity Houses Are Private Residences Under the Fourth Amendment

Micah Kamrass, Manley Burke, mkamrass@manleyburke.com

On May 14, 2015, the Kentucky Supreme Court issued a decision regarding privacy rights of students who reside in fraternity and sorority houses.  Specifically, Milam v. Commonwealth of Kentucky¹ examined the extent to which the Fourth Amendment protects fraternity and sorority house residents from unreasonable searches and seizures.

In 2010, David Milam, a member of Delta Tau Delta at the University of Kentucky, lived in a fraternity-owned chapter facility near the UK campus. On November 30, 2010, the UK Police received a tip that Mr. Milam was selling marijuana out of the chapter facility. Two detectives went to the Delta Tau Delta house to perform a “knock and talk” investigation. They did not have a search warrant.

The officers arrived to the house, and went to the back door, which they mistakenly believed was the front door. The back door was slightly ajar, but instead of immediately opening the door, the police first knocked and rang the bell several times, which received no response. Then, the detectives decided that a fraternity house was more like an apartment complex than a private residence, so they entered the chapter facility through the open door, and began to question members of the fraternity.

While some of the subsequent facts are in dispute, it is undisputed that another member of the fraternity led the detectives to Mr. Milam’s room, where they knocked on his door. Mr. Milam opened the door, and the detectives noticed a strong odor of marijuana, a full jar of marijuana in plain sight, $1,700 worth of Adderall pills, drug paraphernalia, and a fake ID.

Both at the trial and the appellate level, Mr. Milam argued unsuccessfully that the entry to the chapter facility constituted an illegal search. Ultimately, the Kentucky Supreme Court agreed with him. The Court stated, “[t]he question… is whether a fraternity house is considered a private residence or an apartment building or hotel for purposes of Fourth Amendment protections.” This distinction is key, because apartment buildings and hotels often have common areas that are open to the public, which law enforcement officers are allowed to enter without first obtaining consent. However, officers may not enter a private residence without a warrant or one of the clearly defined exceptions to the warrant requirement.

Citing a federal Court of Appeals case² and an Ohio Court of Appeals case³ the Kentucky Supreme Court held that fraternity houses are private residences for purposes of Fourth Amendment protections. The Court then added, “in light of our determination that a fraternity house is a private residence, it necessarily follows that the detectives in the present case, like the general public, had no right to enter the residence.” The Court then ordered that the evidence seized during the search of Mr. Milam’s room must be suppressed.

Perhaps most interestingly, the Court described its impression of a fraternity house:

“[W]ithin the walls of a fraternity house there is more of a heightened expectation of privacy than in a hotel or apartment building. Within these rooms, the residents partake in regular activities which are closed to the rest of the world. For instance, the fraternity’s ‘nice room’ that was located on the first floor and near which the detectives passed, has no standard counterpart in a hotel or apartment complex. It is a room in which fraternity members conduct private meetings and store their memorabilia used for the club’s secret rites.”

As further justification of the heightened expectation of privacy, the Court reasoned that the chapter’s by-laws, which explicitly require that the back door remain locked at all times, demonstrate that the facility is private, and that it does not have common spaces that are generally available to the public. The same rationale was applied to the fact that the back door has a keypad number lock on the door.

While this ruling is consistent with other decisions from various jurisdictions around the country, it sheds new light into how courts may examine expectations of privacy in chapter facilities, which can be useful to chapters and to house corporations.

1 2013-SC-000681-DG (KY 2015)

2 Reardon v. Wroan, 811 F.2d 1025 (7^th Cir. 1987)

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