MA: BC police not state actors when enforcing BC policy

Boston College Police are state actors subject to the constitution in general but not when they conducted a search under the “Conditions for Residency” for a reported weapon possessed in violation of school policy. Drugs were found, and admissible in a criminal proceeding. The defendant consented after consulting with his father. Commonwealth v. Carr, 76 Mass. App. Ct. 41, 918 N.E.2d 847 (2009):

Boston College’s Conditions for Residency 2007-2008 also provides:

“RIGHT OF ENTRY

“The University reserves the right to enter resident student rooms and conduct a plain view search for: reasons of health, maintenance, upholding community standards (including safety and discipline) or inspections. Regular inspections will be conducted by staff in all areas. Except in cases of an emergency, a complete search of the contents of a student’s room will only be made with: (a) his/her consent; (b) with a University Search Warrant issued by the Vice President for Student Affairs or his/her designee; or (c) with a duly authorized search warrant from a local court.”

Applying the principles set forth in Leone to the circumstances here, we hold that while the Fourth Amendment and art. 14 apply to the conduct of Boston College’s campus police, in this circumstance the officers’ private function affects the constitutionality of their conduct and renders it reasonable. See Commonwealth v. Leone, 386 Mass. at 334-338 (decided solely on Fourth Amendment grounds). See also Commonwealth v. Considine, 448 Mass. at 301, nn.13-14 (1997) (suggesting in dictum that any search or seizure of contraband by State police officer acting on invitation of private school officials is permissible). The initial entry into the defendants’ room and the discovery and seizure of the facsimile handgun and other weapons were actions reasonably undertaken by the police on behalf of the legitimate interests of their employer Boston College, a private institution and not a State actor. See Commonwealth v. Leone, 386 Mass. at 335-336. In consequence, their entry into the room without a search warrant does not offend Federal or State constitutional requirements.

The entry was not in furtherance of a criminal investigative function, but to address a violation of Boston College’s policy that prohibited weapons in the dormitory (whether lawful or unlawful, real, or counterfeit) and authorized confiscation of such items found in plain view. The police acted on reliable information from two identified students that Carr, who resided in room 114 Gonzaga Hall, possessed a knife. Adding to the concern was the report that another student had seen a gun or the butt of a gun inside Carr’s room. Although the report of the gun, being anonymous, lacked the reliability of that regarding the knife, the fact that the police harbored concern of an even more serious infraction is immaterial. See Commonwealth v. Blevines, 438 Mass. 604, 608 (2003) (officer’s subjective purpose not relevant when search permissible on objective standard).