“He saw that I was hesitating, and said, ‘Oh, my supervisor is down the hallway,’” Walleck says. “Eventually, I let him come in.”
The officer entered her common room, looked around, and headed for the bedroom of Walleck’s roommate, Kristi L. Jobson ’06, where, allegedly in search of a radio, he “looked on the bed and the desk” before leaving.
The following Monday, Harvard University Police Department (HUPD) online logs confirmed that a detective entered the room next door that same night and charged three undergraduates with marijuana possession and distribution.
And police last month allegedly found 38 hits of LSD in the Quincy House dorm room of an undergraduate, who now faces a minimum of two years in prison if convicted for a drug violation within a school zone.
Although police reports say that in all three cases undergraduates voluntarily allowed police inside, these incidents raise questions about the rights undergraduates retain when they move into college dormitories and just how far their fourth amendment search-and-seizure rights go to protect them.
One of the DeWolfe defendants in the marijuana case told The Crimson earlier this year that before receiving consent, police told him that they did not need a warrant to search his room.
And in light of the search of Walleck’s room, HUPD launched an internal investigation into the actions of the detective, which concluded that the officer acted within protocol.
But experts in civil rights and criminal law suggest that consent can be tainted if officers are misleading.
And although undergraduates in college dormitories are subject to administration searches, experts say that university police departments—even private ones like HUPD—must in almost all cases obtain warrants.
ELEPHANTS IN A TOOL BOX
The HUPD policy on searches is in line with that of other police department policies but does operate on a case-by-case basis.
“HUPD officers may enter a student’s room with consent, a warrant or by a recognized exception to the warrant requirement,” HUPD spokesman Steven G. Catalano wrote in an e-mail. “The decision to search is made in compliance with federal and state law and is decided on a fact- and incident- specific basis. The preservation of constitutional protections is always foremost in the decision to search or not to search.”
In all three recent cases, students acknowledged that they allowed officers to enter their rooms, but the scope of this consent could have been limited by the means officers used to obtain this consent.
Harvard Law School’s (HLS) Climenko Fellow and Thayer Lecturer on law, Wesley Oliver, says that in Walleck’s case, the officer would have been acting outside his bounds had he looked for drugs in the small nooks and crannies of the room.
“If I say I’m looking for elephants, I can’t go looking in a tool box,” Oliver says. “If I say I’m looking for music, I couldn’t look in a shoe box because there wouldn’t be a stereo in there. It limits the scope of what [an officer] can look for.”
The defendant who allowed police to enter his DeWolfe dorm room, and allegedly showed them his marijuana stash crammed in his freezer, says police first insisted they did not need a warrant.
But even a strong suspicion wouldn’t allow an officer to enter a dorm room uninvited—unless the officer had reason to believe that some emergency situation required them to enter the room, lawyers say.
Entering a residence without a warrant—under a principle known as the exigent circumstance doctrine—depends on the severity of the crime, according to Oliver.
“One reason to permit entry without a warrant is to prevent the destruction of the evidence of a crime,” he says. “But that turns in part on how serious the crime suspected is—and ordinary marijuana possession might well not be serious enough.”
Still, says Stephen Hrones ’64, a managing partner at Hrones, Garrity, and Hedges, a Boston-based law firm that specializes in criminal law, getting a warrant is relatively easy.
“You just make a call to somebody—a judge is always on duty,” he says. “Police just call him at home, and he can authorize [a warrant] right from his home.”
In the case of the recent drug arrests, though, HUPD officers opted to take the alternative route: knock on doors and obtain consent from residents.
DOCTRINE OF COLLUSION
In recent months, the Mass. Supreme Judicial Court has grappled with the question of whether HUPD qualifies as a branch of the University or as a state-sanctioned police force.
The Constitution’s fourth amendment search-and-seizure clause protects individuals from state actors—and not private citizens—attempting to enter their residences, says HLS Dane Professor of Law Lloyd L. Weinreb.
“If the campus police officer is regarded as a private person, then there’s no fourth amendment violation because it protects you against official government conduct,” he says.
Oliver says that this principle is known in legal circles as the doctrine of collusion.
“There is a separation of criminal and administrative search,” Oliver says. “There’s this doctrine of collusion—any time University officials collude with Massachusetts police, they’re considered state actors.”
But Oliver says that the law ultimately comes down on the side of treating HUPD as it would any other police force—meaning, for students, that their search-and-seizure rights are not compromised by living in dorm rooms.
But in the DeWolfe drug incident, police didn’t have to obtain warrants because of the consent granted to them by students.
“Consent is as good as a search warrant,” Hrones says. “If you let someone in, all of your rights are gone.”
The four students charged in the DeWolfe incident have pled not guilty and are set to appear in court March 20.
And Walleck and Jobson, whose room was reportedly searched because of noise complaints, say now that they are satisfied with the police’s investigation of the matter.
“They definitely said that they’re going to work in the future on training officers on how to interact better with students,” Jobson, a former Crimson magazine associate editor, told The Crimson last month. “He should have just told us what he was looking for.”
And as drug arrests gain heightened visibility, students are becoming more concerned with the rights they retain in the face of possible room search.
“I know that they’re acting in the interest of our safety and the health of the entire community. But it rubbed me the wrong way. ” she says. “I think there should be good camaraderie between students and police officers.”
—Staff writer Reed B. Rayman can be reached at email@example.com.