On December 23, 2009 the Appeals court in COMMONWEALTH vs. DANIEL CARR 76 Mass.App.Ct. 41 (2009) ruled that the warrantless entry of Boston College Police Officers into a dorm room and subsequent evidence found therin was valid. Justice Grasso writing the opinion for the court stated “On February 14, 2007, at around midnight, April Wynn, a resident director at Boston College with oversight responsibility for Gonzaga Hall, contacted the campus police. [FN2] Wynn spoke with Sergeant John Derick, a twenty-year member of the campus police department. Wynn told Derick that two students who lived in Gonzaga Hall wanted to report a weapon inside a dormitory room.
Because the students feared that their identity would become known, Wynn accompanied them from Gonzaga Hall to the campus police office. The students told Derick that Daniel Carr had been bullying students and bragging about beating people up and having a knife. Both students had seen Carr waving a knife around. They also told Derick that a third student, whom they did not want to identify, had seen the butt of a gun, possibly fake, inside Carr’s dormitory room. Derick confirmed that Carr lived in room 114 Gonzaga Hall.
Pursuant to Boston College’s “Conditions for Residency” all weapons of any kind, whether licensed or unlicensed and whether real, counterfeit, or toy, are prohibited and subject to confiscation. [FN3] All students who reside in a dormitory must read these rules and signify their assent to abide by them in order to reside in a dormitory.”
After speaking with the students, Derick met in Wynn’s office with Boston College police Sergeant Anthony Cadogan, Officer Sean Daley, and Austin Ash, another resident director. The three police officers proceeded to 114 Gonzaga Hall together with the two resident directors. There, Derick knocked and identified himself as a campus police officer.
Subsequently, they entered the Dorm and located a knife and fake black gun that was missing the characteristic red tip to indicate it was fake. They obtained a consent to search the rest of the room and had Carr sign a consent form.
During the search “Inside the footlocker in the middle of the floor, the officers found a locked box that emanated a pungent odor of marijuana. Carr stated that he did not know where the key was, but Derick observed a set of keys nearby, and one opened the box. [FN7] Inside, Derrick found individually packaged baggies of marijuana, ten marijuana cigarettes, rolling papers, seeds, and the defendants’ passports. In Sherman’s desk, the police located a piece of paper containing names, amounts of money, and marijuana residue.
The warrantless entry. It cannot be gainsaid that Boston College is a private actor not subject to the constraints of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. See Commonwealth v. Considine, 448 Mass. 295, 299-300 (2007) (search of students’ rooms by private school officials is not State action for Fourth Amendment or art. 14 purposes). See also Burdeau v. McDowell, 256 U.S. 465, 475 (1921); Commonwealth v. Richmond, 379 Mass. 557, 561-562 (1980) (Fourth Amendment and exclusionary rule apply only to State action). Nor is there any question that under the college’s “Conditions of Residency,” Wynn and Ash possessed the right to enter the defendants’ room and make a “plain view search” [FN10] for prohibited items without implicating the Fourth Amendment or art. 14. [FN11]
Not so easily resolved is whether enlisting the assistance of the campus police to accomplish what Wynn or Ash clearly could have accomplished on their own transforms the encounter into a search and seizure that violates the requirements of the Fourth Amendment and art. 14. Specially commissioned officers formally affiliated with the sovereign and possessing authority beyond that of an ordinary citizen such as arrest and use of weapons are treated as State agents subject to constitutional constraints as to search and seizure. See Commonwealth v. Leone, 386 Mass. 329, 334-335 (1982). However, the constitutional constraints upon such special police officers performing investigatory duties “does not mean that the bounds of permissible conduct are the same for the privately employed special officer as they would be for an ordinary police officer.” Id. at 335. The private function adds a *48 new aspect to his activities that is relevant to proper application of constitutional protections against search and seizure. Ibid. “The action he takes on behalf of his employer may be a lawful and necessary means of protecting the employer’s property, although it would be impermissible if taken on behalf of the State in pursuit of evidence. When the guard’s conduct is justified by his legitimate private duties, it should not be treated as lawless, or ‘unreasonable’ search and seizure.” Id. at 335-336 (internal citations omitted).
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).
Measured against the factors set forth in Leone for assessing the constitutional propriety of a special police officer’s actions, the actions of the Boston College campus police pass constitutional muster. See Leone, supra at 337-338. First, at the time they went to room 114, the police were acting under the control of their private employer, Boston College. The resident director enlisted police assistance, not vice versa. [FN12] Second, the officers’ actions were unquestionably related to the college’s private purposes of ascertaining that weapons, whether real or counterfeit, were not present in the dormitories. The investigation was a legitimate means of protecting the college’s property and fulfilling its obligation to provide a safe environment for its residents. Third, the officers acted reasonably. They went to the room, knocked on the door, awaited response from the occupants, entered, arranged to speak only with the residents, asked them whether they had such weapons, and confiscated the weapons that the defendants acknowledged having. We discern nothing offensive to the individual dignity of the students in the manner and methods employed by the police to locate and seize the prohibited items. When Carr acknowledged that the gun was under the bed, the police were not required to let him retrieve it rather than retrieving it themselves. See Commonwealth v. Guthrie G., 66 Mass. App. Ct. 414, 418-419 (2006). See also Commonwealth v. Voisine, 414 Mass. 772, 783 (1993); Commonwealth v. Hill, 57 Mass. App. Ct. 240, 243-245 (2003).
Nothing in Commonwealth v. Neilson, 423 Mass. 75 (1996), is to the contrary. There, officials of Fitchburg State College, a public actor, entered a dormitory room to investigate the prohibited keeping of a pet. The college had expressly reserved the right to inspect dormitory rooms. In the course of investigation, the officials inadvertently discovered marijuana being cultivated. Rather than seizing the marijuana and turning it over to the police, or providing information to the police with which a search warrant could be obtained, the officials invited the police to enter. The court in Neilson concluded that the constitutional violation *50 occurred not when the college officials entered to enforce the college’s health and safety regulations, but when the police entered the room, searched, and seized evidence without a search warrant, consent, or exigent circumstances. See id. at 79. As observed in Neilson, the defendant’s consent was given not to the police, but to the college officials, who “had no authority to consent to or join in a police search for evidence of crime.” Ibid., quoting from Piazzola v. Watkins, 442 F.2d 284, 290 (5th Cir. 1971). In contrast to Neilson, here the police entered to enforce a residency condition relating to the health and safety of all the dormitory occupants, not in furtherance of a criminal investigation.
Attorney Ronald A. Sellon