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Court: BC Police Didn't Get OK For Dorm Search

The highest court in Massachusetts ruled Wednesday that drugs seized in a Boston College dorm room cannot be used as evidence in a criminal case because the two students who lived there did not consent to the search by campus police.

The Supreme Judicial Court found that Daniel Carr and John Sherman had not clearly agreed to the search of their room and that cocaine, marijuana and hallucinogenic mushrooms found there cannot be used as evidence. Carr and Sherman face drug trafficking and possession charges.

Carr's lawyer, Randy Gioia, said the ruling means private police officers on college campuses and elsewhere must follow the same rules as government police officers and obtain consent or get a warrant to search.
"The SJC found that once the police are inside the room, they were subject to the Fourth Amendment, and they had to obtain voluntary consent before they can conduct a search of the room," Gioia said. "It's clearly a message to private police forces."

Campus police went to the dorm room in February 2007 in response to a report of a weapon.

A lower court judge had suppressed the drug evidence, but that ruling was overturned by the state Appeals Court in December. The SJC on Wednesday found that the state Appeals Court was incorrect.

In its ruling, the Appeals Court said that Boston College students who live on campus are barred by the school from having weapons of any kind, so campus police had the right to enter the students' room and do a "plain view search." The court found that the students gave their permission for the subsequent search that turned up the drugs.

But the SJC agreed with the Superior Court judge who found that prosecutors had not proven that Carr and Sherman had voluntarily consented to the search.

Specifically, the court said the students had signed a portion of a form waiving their Miranda rights, but had not signed the portion of the form that said they were consenting to the search. The court also said the police officers had given conflicting testimony about whether the students had given their verbal consent.
"The Commonwealth failed to satisfy its burden to prove that consent was freely and voluntarily given," the court said, in an opinion written by Justice Robert Cordy.

Middlesex County prosecutors were not immediately available for comment, and a message was left with a spokeswoman for Middlesex District Attorney Gerry Leone.

The SJC did not rule on the issue of whether the campus police had the right to enter the students' room without a warrant. The court said because it was ruling that the evidence will be suppressed on the consent issue, "we need not decide whether the initial entry into the room was lawful."

Chris Dearborn, an associate clinical professor at Suffolk University Law School, said the ruling "is a recognition that there is an expectation of privacy for students in the dorm rooms, which entitles them to the protections of the state and federal constitutions."

This program aired on November 17, 2010. The audio for this program is not available.

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