SEARCH HELD UNREASONABLE

Tim Burke, Manley Burke, tburke@manleyburke.com

The Supreme Judicial Court of Massachusetts recently upheld the rights of students in their dormitory room to be free from unauthorized searches by law enforcement personne^l.

Responding to the report of weapons being seen in a dormitory room, uniformed Boston College law enforcement personnel came to the room, questioned the students who lived there and ultimately asked for permission to search the room.  The students did not fill out or sign the consent to search form and both the trial judge, and ultimately the Supreme Court, found that the students had not consented to the search.

The Supreme Court made it clear that when there is an attempt to rely on the consent to a warrantless search, “under both the Fourth Amendment [to the United States Constitution] and Article 14 [of the Massachusetts Declaration of Rights], the prosecution has the burden of proving that the consent was, in fact, freely and voluntarily given.  In this case, the court could not find such free involuntary agreement and, therefore, upheld the trial court’s suppression of the evidence of drugs and drug paraphernalia that was discovered during the search of the students’ room.

The decision is not particularly surprising given the language of the Fourth Amendment, which assures “the right of the people to be secure in their persons, houses, papers and affects, against unreasonable searches and seizures, shall not be violated….”  Just as it applied in the Boston College dorm rooms, it equally applies in fraternity houses and the rooms of fraternity members living in those houses.¹

¹ Commonwealth v. Carr, 458 Mass. 295 (2010).