STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE
ELEVENTH COURT OF APPEALS BROWN COUNTY
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.
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.
Motion to Suppress
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. 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.
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.
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.
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
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
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.
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."
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.
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.
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.
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.
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).
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.
Standard of Review
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).
The Fourth Amendment
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).
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.
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).
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
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.
The Private-Party-Search Doctrine
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
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.
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
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). 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?
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
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.
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.
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 ...