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State v. Rodriguez

Court of Criminal Appeals of Texas

June 7, 2017



          Newell, J., delivered the opinion of the Court in which Hervey, Alcala, Richardson, Yeary, Keel, and Walker, JJ., joined. Keller, P.J., filed a dissenting opinion. Keasler, J., did not participate.


         Resident assistants searched the dorm room of Mikenzie Renee Rodriguez, found drugs, and called their director, who in turn called the police. The police then entered the room and seized the drugs. Rodriguez was indicted for possession of a controlled substance. The trial court granted Rodriguez's motion to suppress and, on the State's appeal, the court of appeals affirmed-holding there is no college dorm room exception to the Fourth Amendment. State v. Rodriguez, __S.W.3d__, 2015 WL 5714548 (Tex. App.-Eastland 2015). We granted review because this is an issue of first impression to this Court. We agree with the court of appeals that the officers' physical intrusion into a constitutionally protected area was a search within the meaning of the Fourth Amendment. And because it was done without a warrant, consent, or special needs, the fruits of that search were rightly suppressed. We affirm.

         I. Motion to Suppress

         At the hearing on the motion to suppress, the only issue before the trial court was whether the police search was lawful; Appellee did not challenge the search by the civilians. Witnesses testified that Appellee and Adrienne Sanchez, freshman students at Howard Payne University in Brownwood, Texas, shared a dorm room on campus. A housing agreement permitted routine inspections by authorized personnel.[1] Pursuant to this agreement, resident assistants ("RAs") Miriam Mackey and Catherine Mullaney performed room checks for items that residents were not supposed to have such as candles, microwave ovens, and more obviously prohibited items such as drugs or alcohol. They performed the checks as a matter of course, not at the behest of any law enforcement agency.

         When the RAs performed their normal room check on the room shared by Appellee and Sanchez, there was no one in the room. They found marijuana in the first trunk they looked through. The RAs contacted Nancy Pryor, the resident director, who told them to do a more thorough search. The RAs subsequently found a matchbox containing what they believed to be ecstacy pills in the bottom of a basket full of fingernail polish and a pipe inside a sock that had tape wrapped around it. The RAs laid the pill box and the pipe on the floor and took cell phone pictures of the items.

         The resident director contacted the Howard Payne Police. Howard Payne Officer Robert Pacatte, in plain clothes but with a badge, responded, and Pryor took him up to the room. Officer Pacatte entered the room and looked around.

Q. When you got to the room, were you able to see anything out in plain view that you would identify as contraband?
A. Yes, ma'am. On the floor were several items that the ladies had found and had placed on the floor. One would be a-do you mind if I look at my notes for a second?
Q. That's fine.
A. One was a glass pipe, a cigarette lighter, a box of wooden matches that was open and it had two pills laying on top of them, on top of the matches that were in the box, and I don't-I said a cigarette lighter was there also. And then I was shown across the room to a foot locker that was open and empty with the exception of a cigarette lighter and a small package that I believed to be-have in it what I believed to be marijuana.

         He took some photos and contacted the Brownwood Police. Officer Pacatte acknowledged that he did not have a warrant and that "[i]t would have been easy enough to obtain a warrant." He also stated that there were no exigent circumstances, and that he did not ask for consent before entering the room to investigate and photograph the contraband.

         Meanwhile, Adrienne Sanchez returned to the dorm room. When she opened the door she saw the two RAs, the resident director, and the campus police officer. At first, they told her to wait in the hall, but then allowed her in so that she could change clothes. Officer Pacatte "checked" her clothes. He never asked her for consent to search the room. The group did let her leave to go eat. She came back with her coach and, by then, the Brownwood detectives had arrived. Again, she wasn't asked for consent to search the room. As Sanchez explained, "[T]he detectives talked to me, asked me what objects in the room, if they were mine or if they were Mikenzie's, and that was about it." Then they let her out.

         Sanchez told the officers that the items belonged to her roommate, Appellee. Officer Pacatte handed Brownwood Detective Joe Aaron Taylor a plastic sack that had the items in it. Appellee then arrived. After she was read her rights, she admitted that the contraband was hers and said that the pills were Ecstasy. Detective Taylor said the items were not "in plain view" in the traditional sense because a civilian had moved the items from their original place. Detective Taylor also said it would not have been difficult to obtain a warrant, and that the items seized were not in danger of destruction. The defense argued that the police conduct constituted a search.

We have never said that the RAs were State actors. That's not an issue. The issue is that once the police became involved and this became a prosecutorial search, which is what the law, the case law, stipulates, then, it becomes-you have to follow the Fourth Amendment and Article 1 guarantees.

         According to the defense, the entry was a search, and no exception applied. The State countered that this "is a classic situation where someone who is not a state actor found drugs, notified law enforcement, and when law enforcement got there, it's obvious and plain the minute they are on the scene what it is." But if it were a search "Ms. Pryor, as an official at the university, would have had apparent authority to invite the officer in."

         The trial court granted the motion to suppress, finding that the warrantless search of Appellee's residence, without the existence of an applicable exception, violated the Fourth Amendment. On direct appeal, the State, relying in part on Medlock v. Trustees of Ind. Univ., No. 1:11-CV-00977-TWP-DKL, 2011 WL 4068453 (S.D.Ind. Sept. 13, 2011), argued that, under the "private search" doctrine, the officers' entry into Appellee's dorm room did not constitute a search: At the time of their entry, Appellee no longer possessed a subjective expectation of privacy that society would be willing to recognize as reasonable. In Medlock, Zachary Medlock had sought a preliminary injunction to prevent enforcement of his one-year suspension from Indiana University, the result of the discovery of marijuana and drug paraphernalia in his university dormitory room. Id. at *1. Medlock alleged that the search of his room by state school officials (and later the campus police) violated the Fourth Amendment. Id. at *4. In denying the preliminary injunction, the Southern District Court of Indiana noted that Medlock was unlikely to succeed in his claim because once resident advisors were lawfully inside his room to perform a health and safety inspection and discovered marijuana, they were justified in giving access to law enforcement officers. Medlock, 2011 WL 4068453, at *5-6.[2]

         II. Appeal

         The court of appeals rejected the State's argument, noting that (1) the physical entry of the home is a search; (2) Appellee's dorm room is her home; and therefore, (3) the officers' physical entry into Appellee's dorm room constituted a search. Rodriguez, 2015 WL 5714548, at *4-6. The court found Medlock distinguishable because (1) it involved an administrative proceeding with Indiana University rather than a criminal prosecution; (2) the officer in Medlock observed the marijuana in plain view prior to entering the dorm room; and (3) the officer in Medlock actually obtained a search warrant. Id. at *5. The appellate court also agreed with the trial court's conclusion that the State failed to prove that the resident director had the authority, actual or apparent, to permit the officers to enter Appellee's dorm room without a search warrant. Id. at *6-7.

         The court of appeals distinguished the search here from the dorm room search upheld in Grubbs v. State, 177 S.W.3d 313 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). Grubbs had argued that the RA who had entered to investigate the odor of marijuana opened the door for the police, but the record showed that the officers waited in the hall and only entered after Grubbs or his roommate invited the officers in. Rodriguez, 2015 WL 5714548, at *5-6; Grubbs, 177 S.W.3d at 316-18. Here, though, it was dorm personnel who led the officers to Appellee's dorm room. "Despite the authority given to the dorm personnel to enter the dorm room themselves, they simply did not have authority to give police officers consent to enter Appellee's dorm room." Rodriguez, 2015 WL 5714548, at 6.

         The court of appeals pointed to Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971). There, law enforcement officers, accompanied by Troy State University officials, searched six or seven dormitory rooms located in two separate residence halls. The search was based on a tip that students living in those rooms had marijuana. Id. at 286. In holding the search of Piazzola's dorm room unconstitutional, the Fifth Circuit noted that a dorm room is analogous to an apartment or a hotel room-a place in which Piazzola maintained a reasonable expectation of freedom from governmental intrusion. Id. at 288.

         The court of appeals quoted this passage from Piazzola:

"[A] student who occupies a college dormitory room enjoys the protection of the Fourth Amendment. True the University retains broad supervisory powers which permit it to adopt the regulation heretofore quoted, provided that regulation is reasonably construed and is limited in its application to further the University's function as an educational institution. The regulation cannot be construed or applied so as to give consent to a search for evidence for the primary purpose of a criminal prosecution. Otherwise, the regulation itself would constitute an unconstitutional attempt to require a student to waive his protection from unreasonable searches and seizures as a condition to his occupancy of a college dormitory room. Clearly the University had no authority to consent to or join in a police search for evidence of crime."

Rodriguez, 2015 WL 5714548, at *6 (quoting Piazzola, 442 F.2d at 289-90).

         The State filed a petition for discretionary review, arguing that there was no Fourth Amendment search, but, if there were one, it was justified under either the special needs or consent exceptions to the warrant requirement.

         III. Standard of Review

         In reviewing a motion to suppress, we apply a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). Trial courts are given almost complete deference in determining historical facts. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). When a trial judge makes express findings of fact, an appellate court must examine the record in the light most favorable to the ruling and uphold those fact findings so long as they are supported by the record. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The appellate court then proceeds to a de novo determination of the legal significance of the facts as found by the trial court-including the determination of whether a specific search or seizure was reasonable. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004).

         IV. The Fourth Amendment

         The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV. The central concern underlying the Fourth Amendment has remained the same throughout the centuries; it is the concern about giving police officers unbridled discretion to rummage at will among a person's private effects. State v. Granville, 423 S.W.3d 399, 405 (Tex. Crim. App. 2014). A Fourth Amendment claim may be based on a trespass theory of search (one's own personal effects have been trespassed), or a privacy theory of search (one's own expectation of privacy was breached). Ford v. State, 477 S.W.3d 321, 328 (Tex. Crim. App. 2015). If the government obtains information by physically intruding on persons, houses, papers, or effects, a trespass search has occurred. United States v. Jones, 565 U.S. 400, 404-05 (2012). If the government obtains information by violating a person's reasonable expectation of privacy, regardless of the presence or absence of a physical intrusion into any given enclosure, a privacy search has occurred. Florida v. Jardines, 133 S.Ct. 1409, 1417 (2013); Kyllo v. United States, 533 U.S. 27, 40 (2001). A search, conducted without a warrant, is per se unreasonable, subject to certain "jealously and carefully drawn" exceptions. Georgia v. Randolph, 547 U.S. 103, 109 (2006).

         The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Welsh v. Wisconsin, 466 U.S. 740, 748 (1984). Of course, Fourth Amendment protections of the "home" are not limited to houses. While a landlord may have limited authority to enter to perform repairs, a landlord does not have the general authority to consent to a search of a tenant's private living space. Maxwell v. State, 73 S.W.3d 278, 282 n. 3 (Tex. Crim. App. 2002) (citing Chapman v. United States, 365 U.S. 610 (1961)). Nor may a hotel clerk validly consent to the search of a room that has been rented to a customer. Maxwell, id. (citing Stoner v. California, 376 U.S. 483 (1964)). And, as a general matter, "'[a] dormitory room is analogous to an apartment or a hotel room.'" Piazzola, 442 F.2d at 288 (quoting Com. v. McCloskey, 272 A.2d 271, 273 (Pa. Super. Ct. 1970)). "'It certainly offers its occupant a more reasonable expectation of freedom from governmental intrusion than does a public telephone booth.'" Id. Courts have widely agreed that a dorm room is a home away from home. Dorm personnel can-by virtue of contract-enter dorm rooms and examine, without a warrant, the personal effects of students that are kept there in order to maintain a safe and secure campus, or to enforce a campus rule or regulation; the students nevertheless enjoy the right of privacy and freedom from an unreasonable search or seizure. See Grubbs, 177 S.W.3d at 318; People v. Superior Court, (Walker) 143 Cal.App.4th 1183, 1209 (Cal.Ct.App. 2006); Beauchamp v. State, 742 So.2d 431, 432 (Fla. Dist. Ct. App. 1999); Com. v. Neilson, 666 N.E.2d 984, 985-86 (Mass. 1996); Morale v. Grigel, 422 F.Supp. 988, 997 (D.N.H.1976); Smyth v. Lubbers, 398 F.Supp. 777, 786 (W.D. Mich. 1975); People v. Cohen, 292 N.Y.S.2d 706, 713 (Dist. Ct. 1968), aff'd, 306 N.Y.S.2nd 788 (Sup. Ct. 1969). The student is the tenant, the college the landlord. As the court of appeals put it: "Appellee enjoyed the same Fourth Amendment protection from unreasonable searches and seizures in her dormitory room as would any other citizen in a private home." Rodriguez, 2015 WL 5714548, at *4.

         A warrantless entry into a home is a search under either a privacy or a trespassory theory. Jones, 565 U.S. at 406-09 ("the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test"). Established exceptions to the warrant requirement include the consent exception, Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the exigency exception, Mincey v. Arizona, 437 U.S. 385 (1978), the automobile exception, California v. Carney, 471 U.S. 386 (1985), the search-incident-to-arrest exception, United States v. Robinson, 414 U.S. 218 (1973), and the special-needs exception, O'Connor v. Ortega, 480 U.S. 709 (1987) Therefore, before police officers may conduct a search they must obtain a warrant or show that a recognized exception to the warrant requirement applies Jones, 357 U.S. at 499 The Supreme Court "has never said that mere convenience in gathering evidence justifies an exception to the warrant requirement" Birchfield v North Dakota, 136 S.Ct. 2160, 2194 (2016) (Sotomayor, J, concurring in part and dissenting in part). "If the simple collection of evidence justifies an exception to the warrant requirement even where a warrant could be easily obtained, exceptions would become the rule." Id. As Justice Jackson put it, "Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers." Johnson v. United States, 333 U.S. 10, 14 (1948). The State bears the burden of establishing that a warrantless search falls under one of these exceptions. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).

         V. The University Search of Appellee's Dorm Room Did Not Extinguish Appellee's Legitimate Expectation of Privacy And the Police Search Violated the Fourth Amendment

         The State argues that there was no invasion of privacy by law enforcement sufficient for the Fourth Amendment to attach. Alternatively, the State argues that any search did not run afoul of the Fourth Amendment because the search was reasonable under either the special needs doctrine or the consent doctrine. We first examine whether the police officers' physical intrusion into Appellee's dorm room was a search within the meaning of the Fourth Amendment. It was. We then look to see if the search was reasonable under the Fourth Amendment. In this case, it was not.

         A. The Private-Party-Search Doctrine

         The State does not appear to argue that a college student completely lacks any expectation of privacy in his or her dorm room. Rather, the State argues that Appellee's existing privacy rights in her dorm room had been frustrated by a private party search. According to the State, this prior search extinguished any legitimate expectation of privacy Appellee had in her dorm room. Under this theory, no "new" search occurred because the original search was carried out by private actors and the officers' subsequent search of the room did not exceed the scope of the private search.

         The United States Supreme Court first recognized the private-party-search doctrine in Burdeau v. McDowell. There, the Court held that the Fourth Amendment's warrant requirement applies only to government agents, not private actors. 256 U.S. 465 (1921). Private detectives had taken McDowell's personal papers and turned them over to prosecutors. Id. at 474. The Supreme Court held it "manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another." Id. at 475.

         The private-party-search doctrine is often applied in bailee cases in which the private person (e.g., the mechanic, the computer repairman, the airline baggage handler etc.) had legal possession of the item when he conducted the search. See 1 Wayne R. LaFave, Search and Seizure § 1.8(a); United States v. Seldon, 479 F.3d 340, 341 (4th Cir. 2007) (service technicians find a false compartment in a van that had been brought to the dealership for repair); Rogers v. State, 113 S.W.3d 452, 454-55 (Tex. App.-San Antonio 2003, no pet.) (computer technician finds files containing child pornography on computer voluntarily relinquished to computer repair store); United States v. Blanton, 479 F.2d 327, 327-28 (5th Cir.1973) (airline employee finds illegal firearm in search of unclaimed bag). In such cases, the bailors assume the risk that the bailees would allow police access, and, therefore, they cannot complain that they maintain an expectation of privacy in the property searched.

         In other private-party-search cases, the property is simply seized by a private person-legally or not-and turned over to the police without the police having entered a protected area. Cobb v. State, 85 S.W.3d 258, 270-01 (Tex. Crim. App. 2002) (holding that Fourth Amendment was not implicated when private citizen took knives from his son's apartment); Bodde v. State, 568 S.W.2d 344, 352-53 (Tex. Crim. App. 1978) (Bodde's landlady took bonds and rings belonging to the deceased from Bodde's apartment and turned them over to the police); Stone v. State, 574 S.W.2d 85, 87 (Tex. Crim. App. [Panel Op.] 1978) (Stone's babysitter gathered photographs depicting sexual assault from Stone's residence and gave them to the housing manager, who in turn gave them to the police).[3] In these cases the police make no search at all as the property is seized by a private party without any intrusion on an expectation of privacy by law enforcement. The question remains: How free are the police to do what was done earlier by a private party?

         In United States v. Jacobsen, 466 U.S. 109 (1984), the Court ruled that additional invasions of privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search. Id. at 115. There, Federal Express employees opened a damaged box, found a tube wrapped in newspaper, cut open the tube, and discovered clear plastic bags containing a white powdery substance. Id. at 111. The employees then notified the DEA, replaced the plastic bags in the tube, and put the tube back into the box. Id. When a DEA agent arrived, he removed the tube from the box and the plastic bags from the tube, saw the white powder, opened the bags, removed a trace of the powder, subjected it to a field chemical test, and determined it was cocaine. Id. at 111-12. The Supreme Court held that the DEA did not invade upon any reasonable expectation of privacy by physically examining the powdery substance because the expectations of privacy in the package had already been frustrated by the actions of nongovernmental third parties. Id. at 117-21. The Court further held that the chemical test, that disclosed whether or not a particular substance is cocaine, did not compromise any legitimate interest in privacy. Id. at 123. Because the field test could reveal "no other arguably 'private' fact, " the test "compromise[d] no legitimate privacy interest." Id.

         We relied on Jacobsen in State v. Hardy to hold that the State's acquisition of medical records containing the results of blood-alcohol tests taken by hospital personnel did not invade the defendant's legitimate expectation of privacy. 963 S.W.2d 516 (Tex. Crim. App. 1997). We noted that "whatever interests society may have in safeguarding the privacy of medical records, they are not sufficiently strong to require protection of blood-alcohol test results from tests taken by hospital personnel solely for medical purposes after a traffic accident." Id. at 526-27.

         Similarly, in State v. Huse, we held that Hardy survived the subsequent enactment of HIPAA. 491 S.W.3d 833, 842-43 (Tex. Crim. App. 2016). We noted that the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party. Id. at 840. And we explained that whatever insulation HIPAA provides against third-party disclosure of medical records in general, it does not extend to the disclosure of blood-alcohol test results from tests taken by hospital personnel solely for medical purposes after a traffic accident. Id. at 842. Similar to an application of the private-party-search doctrine, we essentially held in both Hardy and Huse that the Fourth Amendment did not apply to the initial search-the extraction and testing of the blood-by private parties and that the State's subsequent acquisition of medical records from those private parties without any intrusion into a protected area by law enforcement also did not implicate the Fourth Amendment. We did not hold in those cases that police could conduct a second, warrantless blood draw based upon the fact that private citizens had already drawn the defendants' blood.

         In the context of a search of a residence, the Jacobsen Court itself suggested that a police search duplicating a private search of a home would violate the Fourth Amendment. Justice White, concurring in Jacobsen, stated,

If a private party breaks into a locked suitcase, a locked car, or even a locked house, observes incriminating information, returns the object of his search to its prior locked condition, and then reports his findings to the police, the majority apparently would allow the police to duplicate the prior search on the ground that the private search vitiated the owner's expectation of privacy.

Jacobsen, 466 U.S. at 132 (White, J., concurring). The majority responded by rejecting the suggestion that police could seize and search a "container" simply upon learning from a private individual that the ...

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