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Court rules search by BC police legal

Critics contend student rights now jeopardized

By Peter Schworm
Globe Staff / December 24, 2009

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In a decision that troubled some individual-rights advocates, the Massachusetts Appeals Court ruled yesterday that Boston College police officers acted legally in 2007 when they searched a dormitory bedroom without a warrant and arrested two students after discovering large quantities of cocaine and marijuana.

The court, overturning a Superior Court decision that police infringed upon the students’ constitutional rights, concluded that the students who lived in the room, Daniel Carr and John Sherman, acted freely when they signed a consent form allowing the search.

“The defendants were college students whose age and level of education equipped them to understand what was being asked of them and that they had an option to refuse,’’ the ruling stated. “They were not unusually susceptible or impressionable.’’

The appeals court also ruled that a BC police officer who first entered the room did so legally because he was investigating a report that there was a weapon, in a violation of college policy. Police found a plastic gun and two knives.

But some critics said the ruling could curtail student rights and give campus police departments too much authority.

A Superior Court judge had ruled that the initial entry into the room was unlawful because police were not explicitly invited and that any consent, whether to enter or search, was involuntary. The court suppressed the drugs as evidence.

Carr and Sherman were indicted two years ago on drug trafficking charges, and their case is on hold while the courts determine the legality of the search. Attorneys for the defendants said they will appeal the case to the Supreme Judicial Court.

“This decision diminishes the rights of college students,’’ said Randy Gioia, a Boston criminal defense lawyer. “The Fourth Amendment applies on college campuses as well as city streets.’’

In its ruling, the appeals court said that police who are privately employed have more latitude than government police officers to conduct searches.

Some privacy advocates said the ruling could apply to a wide range of private security officers and specialized police.

“Given the number of police officers who work for private companies, it’s a matter of broad concern,’’ said John Reinstein, legal director for the American Civil Liberties Union of Massachusetts. “It lowers the constitutional bar.’’

While on campus, officers with BC’s Police Department have the same authority and powers as local and State Police.

Jack Dunn, a spokesman for the university, said BC’s officers “have always believed that they acted properly in this matter’’ and are pleased by the ruling.

Carr and Sherman were dismissed from the university upon their arrest. It remains the only arrest for a felony drug possession on BC’s campus, Dunn said.

Jack Ryan, a Rhode Island attorney, said the decision could embolden college police forces, particularly at private schools.

“It could open the door to more enforcement of school rules,’’ said Ryan, codirector of the Public Agency Training Council, a private law enforcement training company. “If in the course of enforcing school rules, they find evidence of a crime, they are still going to be on solid ground.’’

Around midnight on Feb. 14, 2007, a resident director at BC notified college police that two students had seen Carr waving a knife around and that a third student had apparently seen the butt of a gun in Carr’s dorm room. Weapons, real or counterfeit, are prohibited on campus.

Three police officers and two resident directors went to the dorm and knocked on the door. Carr said he had owned a toy gun but had thrown it out. When pressed, Carr admitted the gun was under the bed, and the officer reached under the bed and retrieved a plastic replica of a .45-caliber gun.

Carr then produced a folding buck knife from his waistband and then a smaller folding knife and a spiked martial arts weapon, according to the court’s decision.

Both defendants then agreed to a search of their room by signing consent forms. Police then found 12 small bags of cocaine that had fallen out of a winter jacket and two more bags under the bunkbeds. They also found a bag of hallucinogenic mushrooms under a backpack on the floor and a plastic bag of marijuana underneath a futon cushion.

After discovering the items, police arrested the students and handcuffed them.