OH6: BGU Police entry into frat house to investigate smoking on a balcony violated the Fourth Amendment

A Bowling Green University Police Department officer saw smoke on the balcony of a fraternity house, and he used an electronic pass key to get into the building. He came to the balcony and found defendants smoking marijuana. They all had a reasonable expectation of privacy in the frat house because they were like roommates. Any authority of the campus police to enter was limited to emergencies and not law enforcement investigation. State v. Miller, 2011 Ohio 1545, 2011 Ohio App. LEXIS 1361 (6th Dist. March 31, 2011):

[*P20] [Defendants] request the court to follow the decision of the U.S. Court of Appeals for the Seventh Circuit in Reardon v. Wroan (7th C.A. 1987), 811 F.2d 1025, and rule that a fraternity house is to be treated the same as a home for purposes of Fourth Amendment rights:

[*P21] “[I]t is necessary to address briefly whether the fraternity residence is afforded the same Fourth Amendment status as a home under the protections of Payton. More specifically, there is some question as to whether the hallway to the fraternity house where the plaintiffs were arrested is comparable, under a Fourth Amendment analysis, to the common areas of apartment buildings where the cases have held that privacy interests are not protected under Payton. *** Although there are certain similarities to the apartment building cases, fraternity residents clearly have a greater expectation of privacy in the common areas of their residence than do tenants of an apartment building. As the district court noted, fraternity members could best be characterized as ‘roommates in the same house,’ not simply co-tenants sharing certain common areas. Moreover, a fraternity, by definition, is intended to be something of an exclusive living arrangement with the goal of maximizing the privacy of its affairs.” Id. at 1028, fn. 2 (Citations omitted.)

[*P22] At the time of the search, Delta Tau Delta fraternity house provided residence for six or seven students with access to the building by the public restricted at all times. We agree with the Reardon court that the shared living arrangement at a fraternity house supports treating residents as “roommates in the same house.” We conclude that appellants met their burden of showing a reasonable expectation of privacy throughout the house and that the fraternity house should be treated as a home for purposes of Fourth Amendment protections against unreasonable searches and seizures by law enforcement officials.

. . .

[*P29] Even if Officer Pearcy’s observations from outside the building presented probable cause to believe that appellants were smoking marijuana, the exigent circumstances exception would not apply to support a warrantless search. Possession of marijuana, a violation of R.C. 2925.11(C)(3)(a), is a minor misdemeanor. Section 14, Article I of the Ohio Constitution prohibits warrantless arrests for minor misdemeanors absent special circumstances and also prohibits searches incident to such arrests. State v. Brown, 99 Ohio St.3d 323, 2003-Ohio-3931, ¶25. This court has held that the exigent circumstances exception to the presumption of unreasonableness of warrantless home entries is not applicable to misdemeanor offenses. State v. Christian, 6th Dist. No. F-04-003, 2004-Ohio-3000, ¶ 11; State v. Scott [M.] (1999), 135 Ohio App.3d 253, 258.

[Note: Accord: United States v. Werra from the First Circuit posted 3/25 finding a REP as to the common areas in a rooming house as to a man on the third floor.]