PD-1391-15 PD-1391-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/26/2015 3:40:33 PM Accepted 10/27/2015 4:38:19 PM ABEL ACOSTA PDR NO. CLERK
COURT OF APPEALS CAUSE NO. 11-13-00277-CR
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
THE STATE OF TEXAS Appellant V. MIKENZIE RENEE RODRIGUEZ Appellee
PETITION FOR DISCRETIONARY REVIEW
Micheal B. Murray 35th District Attorney State Bar No. 00792955 October 27, 2015 200 S. Broadway, Ste. 323 Brownwood, Texas 76801 TEL: (325) 646-0444 FAX: (325) 643-4053
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... 2 INDEX OF AUTHORITIES...................................................................................... 3 LIST OF PARTIES .................................................................................................... 5 STATEMENT REGARDING ORAL ARGUMENT ............................................... 6 STATEMENT OF THE CASE .................................................................................. 6 STATEMENT OF PROCEDURAL HISTORY........................................................ 6 GROUNDS FOR REVIEW ....................................................................................... 7 1. Should a court of appeals consider all of the totality of the circumstances, including: (a) who initially searched a dorm room, (b) whether law enforcement had to conduct any additional search beyond a search conducted by university officials, and (c) whether a student consented to university officials searching her room, when determining whether the Fourth Amendment was implicated by law enforcement’s actions in entering a dorm room?
2. Should a university’s duty to provide a safe environment, with an atmosphere conducive to the educational process, and the minimal intrusion by law enforcement be balanced against a college student’s Fourth Amendment rights when determining the reasonableness of a dorm room search?
3. The Court of Appeals erred in categorically ruling that the plain view doctrine did not apply because university administrators cannot have actual or apparent authority to consent to law enforcements’ entry into a dormitory room. ARGUMENT ............................................................................................................ 8 CONCLUSION ........................................................................................................ 21 CERTIFICATE OF SERVICE ................................................................................ 21 CERTIFICATE OF COMPLIANCE ....................................................................... 22 APPENDIX .............................................................................................................. 23
2 INDEX OF AUTHORITIES STATUTES
Rule of Appellate Procedure 66.3 .......................................................................15,19
CASES Cal. v. Acevedo, 500 U.S. 565 (1991) .................................................................. 9,10 Com. v. McCloskey, 272 A.2d 271 (Pa. 1970) ........................................................ 19 Devers v. Southern University, 97-0259 (La. App. 1 Cir. 4/8/98) .....................15,16 Grubbs v. State, 177 S.W.3d 313 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) ..........................................passim Illinois v. McArthur, 531 U.S. 326 (2001) .............................................................. 10 Ker v. Cal., 374 U.S. 23 (1963) ................................................................................ 9 Kyllo v. U.S., 533 U.S. 27 (2001) ........................................................................... 10 Medlock v. Trustees of Indiana Univ., 738 F.3d 867 (7th Cir. 2013) ..............passim Medlock v. Trustees of Indiana Univ., No.1:11-CV-00977-TWP-DKL, 2013 WL 1309760 (S.D. Ind. Mar. 28, 2013) ........................................................ 15 Moore v. Student Affairs Comm. of Troy State Univ., 284 F.Supp. 725 (M.D. Ala. 1968) ................................................................................................15,17 New Jersey v. T.L.O., 469 U.S. 325 (1985) ........................................................... 8,9 Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971) ..........................................passim Riley v. Cal., 134 S.Ct. 2473 (2014) ......................................................................... 9 Smyth v. Lubbers, 398 F.Supp. 777 (W.D. Mich. 1975) ........................................ 15 State v. Hunter, 831 P.2d 1033 (Utah Ct. App. 1992) ..................................13,15,16 State v. Kappes, 550 P.2d 121 (Ariz. Ct. App. 1976) ...................................13,16,19 State v. Rodriguez, No. 11-13-00277-CR, 2015 WL 5714548 (Tex. App.—Eastland Sept. 24, 2015, pet. filed). ...........................................passim
3 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) ..................... 17 U.S. v. Drayton, 536 U.S. 194 (2002) ....................................................................... 9 U.S. v. Jacobsen, 466 U.S. 109 (1984) ................................................................... 12 U.S. v. York, 895 F.2d 1026 (5th Cir. 1990) ........................................................... 10
4 LIST OF JUDGE, PARTIES AND COUNSEL 1. The Trial Court
The Honorable Stephen Ellis 35th Judicial District Judge 200 S. Broadway Brownwood, Texas 76801
2. The State of Texas
Appellate Counsel Micheal B. Murray 35th Judicial District Attorney 200 S. Broadway, Suite 323 Brownwood, Texas 76801
Trial & Appellate Counsel Elisha Bird Assistant District Attorney 200 S. Broadway, Suite 323 Brownwood, Texas 76801
3. Mikenzie Renee Rodriguez
Trial & Appellate Counsel Sharon Diaz Attorney at Law 315 North 2nd Street Rosebud, Texas 76570
Matthew Wright Attorney at Law 315 North 2nd Street Rosebud, Texas 76570
5 TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT REGARDING ORAL ARGUMENT The State requests oral argument because this case presents several
important issues that would have application far beyond the facts of this case.
STATEMENT OF THE CASE Resident Assistants (RA’s) searched Appellee’s dorm room pursuant to a
housing agreement between Appellee and a private university while Appellee was
not present. R.R. Vol. 2, pp. 22-23, 76-79; R.R. Vol. 3, State’s Exhibit 2 (Attached
as Appendix A). The RA’s located ecstasy and drug paraphernalia during the
search and placed the items on the floor of the dorm room. R.R. Vol. 2, pp. 22-29.
The University’s Resident Director contacted university police and escorted
a university police officer into the dorm room. R.R. Vol. 2, pp. 30-32. The
officer, upon entering the room, immediately recognized the items on the floor as
illegal contraband. R.R. Vol. 2, pp. 33-34, 43-45.
STATEMENT OF PROCEDURAL HISTORY Appellee was indicted for Possession of a Controlled Substance and filed a
motion to suppress. C.R. p. 11, 47-50. After a hearing, the trial judge granted
Appellee’s motion. R.R. Vol. 2, p. 1; C.R. p. 78.
The Eleventh Court of Appeals affirmed the trial court’s ruling in this case
on September 24, 2015. See generally State v. Rodriguez, No. 11-13-00277-CR,
2015 WL 5714548 (Tex. App.—Eastland Sept. 24, 2015, pet. filed) (attached as 6 Appendix B) (hereinafter Rodriguez, 2015 WL 5714548). A motion for rehearing
was not filed. The State Petition for Discretionary Review is due on October 26,
2015.
GROUNDS FOR REVIEW 1. Should a court of appeals consider all of the totality of the circumstances,
including: (a) who initially searched a dorm room, (b) whether law
enforcement had to conduct any additional search beyond a search
conducted by university officials, and (c) whether a student consented to
university officials searching her room, when determining whether the
Fourth Amendment was implicated by law enforcement’s actions in entering
a dorm room?
2. Should a university’s duty to provide a safe environment, with an
atmosphere conducive to the educational process, and the minimal intrusion
by law enforcement be balanced against a college student’s Fourth
Amendment rights when determining the reasonableness of a dorm room
search?
3. The Court of Appeals erred in categorically ruling that the plain view
doctrine did not apply because university administrators cannot have actual
or apparent authority to consent to law enforcements’ entry into a dormitory
room.
7 ARGUMENT This petition for discretionary review should be granted because the
Eleventh Court of Appeals issued a decision that will have far-reaching
implications for searches of college dormitory rooms. Because this Court has not
yet issued an opinion related to searches of dorm rooms, this case will be treated as
one of the few authoritative cases on this issue. See Texas District & County
Attorneys Association, Case of the Week (Oct. 9, 2015, 3:06 PM),
http://www.tdcaa.com/ (attached as Appendix C).
The Supreme Court of the United States noted in relation to secondary
schools that:
Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crimes in the schools have become major social problems. New Jersey v. T.L.O., 469 U.S. 325, 339 (1985).
This statement, while certainly true in 1985, has become even more evident
in light the recent shooting at Texas Southern University, the Virginia Tech
shooting, the Columbine shooting, and numerous other shootings.
Drug use is also increasing among students. The National Institute on Drug
Abuse states that the “[u]se of illicit drugs, including marijuana, has been rising
steadily among college-aged young adults.” Nat’l Inst. on Drug Abuse, NIDA
highlights drug use trends, (May 18, 2015), http://www.drugabuse.gov/ news-
8 events/news-releases/2015/05/nida-highlights-drug-use-trends-among-college-age-
young-adults-in-new-online-resource (attached as Appendix D).
To leave officers without guidance on how to approach college
environments will create inconsistency. Considering the increased need to
maintain order in colleges, this Court should address how the Fourth Amendment
relates to this environment.
Conflict with applicable decisions of Court of Criminal Appeals and Supreme Court This Court should grant review because the court of appeals’ decision
conflicts with the applicable decisions of the Court of Criminal Appeals and the
Supreme Court of the United States requiring an examination of the totality of the
circumstances when considering Fourth Amendment reasonableness.
The touchstone of the Fourth Amendment is reasonableness. Riley v. Cal.,
134 S.Ct. 2473, 2482 (2014). There is no formula for reasonableness, but rather
each case should be decided on its own facts and circumstances. Ker v. Cal., 374
U.S. 23, 33 (1963) (plurality opinion).
Per-se rules are, for the most part, inappropriate in a Fourth Amendment
context. U.S. v. Drayton, 536 U.S. 194, 201 (2002). Context is critical for a
proper assessment of what is reasonable. See T.L.O., 469 U.S. at 337 (1985).
Generally a warrant is the preferred method of showing reasonableness. See
Cal. v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring). However, 9 “[w]hen faced with special law enforcement needs, diminished expectations of
privacy, minimal intrusions, or the like, the Court has found that certain general, or
individual, circumstances may render a warrantless search or seizure reasonable.
Illinois v. McArthur, 531 U.S. 326, 330 (2001).
Significantly, “school searches” have been held to be one of those
exceptions. Acevedo, 500 U.S. 565 at (1991) (Scalia, J., concurring).
Even when a residence is involved, the Fourth Amendment is not implicated
unless the government violates a defendant’s subjective expectation of privacy that
society is willing to recognize as reasonable. Kyllo v. U.S., 533 U.S. 27, 33 (2001).
Activities or circumstances within a dwelling may lessen an owner’s
reasonable expectation of privacy by creating a risk of intrusion which is
“reasonably foreseeable.” U.S. v. York, 895 F.2d 1026, 1029 (5th Cir. 1990).
The court of appeals’ decision relied on the general principles of privacy.
See Rodriguez, 2015 WL 5714548 at *2-6. The decision did not analyze how the
totality of the circumstances may have lessened Appellee’s expectation of privacy.1
Id.
1 In its analysis, the Eleventh Court of appeals starts by holding that law enforcements’ entry into the dorm room constituted a search and then after that addressed Appellee’s expectation of privacy. See State v. Rodriguez, 2015 WL 5714548 at *4 (“Thus, the officers' entry into Appellee's dorm room constituted a search. We must next answer the question of whether Appellee had a subjective expectation of privacy in her dorm room that society considers objectively reasonable.”). 10 Some of the key facts that were particular to the case at bar but were
summarily dismissed by the Eleventh Court of Appeals2 are that:
(1) The initial search of the defendant’s dorm room was done by university officials (C.R. p. 93, para. 4 and p. 96, para. 2-3)3;
(2) All of the contraband was located by university personnel and laid out onto the floor. Law enforcement did not have to touch or manipulate the items in any way to note the illegal nature of the items, and law enforcement was not present when the items were laid out on the floor (C.R. p. 94, para. 11, 16, 18 and p. 95, para.19, R.R. Vol. 2, pp. 24-26, 29.);
(3) The defendant signed a University Housing Agreement at the beginning of the school year which allowed the university to search her dorm room “to inspect property, seek and/or confiscate unauthorized property…or for any other purpose including suspected violations of University
Such reasoning necessarily fails to consider the totality of the circumstances. Determining whether any Fourth Amendment protection exists must happen before concluding that a search occurred. 2 The Court of Appeals was dismissive of this argument based on its perception that the State did not argue this theory at the hearing. See Rodriguez, 2015 WL 5714548 at *2. However, in addition to the oral arguments, the State filed a brief in which it argued both that the Fourth Amendment was not implicated by a “search,” and that even if there was a search, that search was reasonable under the Fourth Amendment in light of the fact that university officials had discovered the contraband before law enforcement was involved. C.R. p. 59-60. In its brief filed with the trial court, the State argued:
Assuming that the Fourth Amendment is implicated at all, the issue in this case is exactly the same as in Medlock. Can an officer come to a dorm room, when school officials have already discovered drugs as a result of a routine health and safety inspection, and seize drugs found in plain view? The answer from Medlock, the only on point case, is unequivocally yes. C.R. p. 60.
The clear intent of the State was to raise the issue of whether the Fourth Amendment was implicated by law enforcement officers coming into a dorm room after a private party had already searched. 3 The trial court held that the university officials were not involved in law enforcement or acting at the request of law enforcement. See C.R. p. 93, para. 4, p. 96, para. 2-3. 11 policies…”(R.R. Vol. 2, pp. 16-17, C.R. p. 96, para. 1; R.R. Vol. 3, State’s Exhibit 2, Attached as Appendix A);
A Private Party Search & Its Impact on a Reasonable Expectation of Privacy The court of appeals’ decision does not address how the first two facts listed
above diminished the Defendant’s expectation of privacy, other than to dismiss
these facts as irrelevant because the Defendant did not know that contraband was
found. See Id. at *5.
The private party search doctrine does not require that a defendant know that
a search did in fact occur or know that the defendant’s expectation of privacy had
in fact been frustrated. See U.S. v. Jacobsen, 466 U.S. 109, 111-13 (1984).
The Eleventh Court of Appeals’ decision reads a new element of knowledge
after the fact into the private party search doctrine. Such an interpretation is novel
and forces courts to ignore the totality of the circumstances.
This Court should grant discretionary review to address whether the private
party search doctrine requires that a defendant know that their expectation of
privacy has been frustrated.
A Housing Agreement & Its Impact on a Reasonable Expectation of Privacy Also, the court of appeals’ decision failed to address what effect the housing
agreement had on either a subjective or objective expectation of privacy. See
Rodriguez, 2015 WL 5714548 at *2-6.
12 Residents of dormitories at Howard Payne University were required to
complete a University Housing Application/Agreement in order to live in a dorm
room. R.R. Vol. 2, pp. 76-77. The University Housing Application/Agreement
stated that:
The University may enter a student’s room to inspect property, seek and/or confiscate unauthorized property, make repairs, respond to an emergency, ensure evacuation during a fire/tornado alarm, or for any other purposes including suspected violations of University policies at any time. R.R. Vol. 3, State’s Exhibit 2. University policy as stated in the Student Handbook included an expectation
that students be “law abiding” and prohibited conduct such as:
11. Violation of any law… 15. The use or possession of drug paraphernalia (e.g., pipes, roach clips, etc.)… 16. The use or possession of illegal drugs... R.R. Vol. 3, State’s Exhibit 3. Appellee completed a University Housing Application/Agreement prior to
moving into the dorms at the University. See R.R. Vol. 2, pp. 17, 77-78.
Numerous cases have considered housing agreements among the totality of
circumstances in Fourth Amendment dormitory search analysis. See Medlock v.
Trustees of Indiana Univ., 738 F.3d 867, 872 (7th Cir. 2013); Grubbs v. State, 177
S.W.3d 313, 319 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); State v.
Hunter, 831 P.2d 1033, 1035 (Utah Ct. App. 1992), cert. denied 843 P.2d 1042
(Utah 1992); State v. Kappes, 550 P.2d 121, 124-25 (Ariz. Ct. App. 1976).
13 By failing to consider or even mention the impact the housing agreement
had on a dorm resident’s expectation of privacy, the court failed to consider the
totality of the circumstances. The error in this case is egregious as such
agreements are common and create a unique aspect to dormitory living that is not
present in any other type of residence.
Totality of the Circumstances The error of the Eleventh Court of Appeals in not considering these three
facts is compounded by its error in failing to consider other facts in this case.
The court of appeals did not address the facts that:
(1) A university administrator, as opposed to a student resident assistant,
escorted the law enforcement officer into the dorm room. R.R. Vol. 2,
pp. 22, 24, 32, 44, 67-68;
(2) Appellee was notified at a mandatory hall meeting that the Resident
Assistants would be searching the dorm rooms prior to the search.
R.R. Vol. 2, pp. 18-19;
(3) The University’s Student Handbook prohibited the use or possession
of drug paraphernalia and illegal drugs. R.R. Vol. 3, State’s Exhibit
3;
(4) Law enforcement was not present when the items were placed on the
floor exposed to view. R.R. Vol. 2, p. 24-26, 29;
14 (5) Considering the time-frame of law enforcements’ actions in the dorm
room, any photographs taken or interviews done would have occurred
after law enforcement saw the ecstasy and drug paraphernalia. R.R.
Vol. 2, pp. 44, 37-38, 51-53; C.R. p. 95, para. 20-22.
All of these facts should have been addressed and accounted for when
considering whether the Fourth Amendment was implicated by law enforcement’s
involvement.
Unsettled question of state and federal law Additionally, this Court should grant review because the application of the
Fourth Amendment to searches of dormitories is an important question of both
state and federal law that has not been, but should be, settled by this Court.
Competing Approaches to Evaluating Dormitory Searches Although courts in several jurisdictions have addressed how the Fourth
Amendment applies to college dormitories, neither this Court nor the Supreme
Court of the United States has yet issued any guidance.4
4 See generally Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971); Medlock v. Trustees of Indiana Univ., 738 F.3d 867 (7th Cir. 2013); Smyth v. Lubbers, 398 F.Supp. 777 (W.D. Mich. 1975); Moore v. Student Affairs Comm. of Troy State Univ., 284 F.Supp. 725 (M.D. Ala. 1968); Medlock v. Trustees of Indiana Univ., No.1:11-CV-00977-TWP-DKL, 2013 WL 1309760 (S.D. Ind. Mar. 28, 2013) aff’d, 738 F.3d 867 (7th Cir. 2013); State v. Hunter, 831 P.2d 1033 (Utah Ct. App. 1992) cert. denied 843 P.2d 1042 (Utah 1992); Devers v. Southern University, 97-0259 (La. App. 1 Cir. 4/8/98), 712 So.2d 199. 15 Grubbs v. State is the only other Texas case on this topic. The First Court of
Appeals explicitly recognized in Grubbs that this is a question of first impression
in Texas. 177 S.W.3d 313, 320 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
Other jurisdictions are quite divided in their approach to handling searches
of dormitories.5 Some jurisdictions have approached searches of dorm rooms from
the perspective that the “right of privacy protected by the fourth amendment does
not include freedom from reasonable inspection of a school-operated dormitory
room by school officials.” State v. Hunter, 831 P.2d 1033, 1035 (Utah Ct. App.
1992), cert. denied 843 P.2d 1042 (Utah 1992) (quoting State v. Kappes, 550 P.2d
121, 124 (Ariz. Ct. App. 1976)).
While others have adopted a far more hostile position towards university
searches. For example, the First Circuit Court of Appeals in Louisiana held a
housing regulation unconstitutional because the regulation conditioned attendance
at a state school on a student’s renunciation of his constitutional rights. Devers v.
Southern University, 97-0259 (La. App. 1 Cir. 4/8/98), 712 So.2d 199, 204-07.
5 See, e.g., Medlock v. Trustees of Indiana Univ., 738 F.3d 867, 873 (7th Cir. 2013) (calling a §1983 lawsuit against a university and law enforcement “near frivolous”); Piazzola v. Watkins, 442 F.2d 284, 286- (5th Cir. 1971) (holding that a search without a warrant of a dorm room by law enforcement officers and university officials was unreasonable); Devers v. Southern University, 97-0259 (La. App. 1 Cir. 4/8/98), 712 So.2d 199, 204, 210 (holding that a broadly worded housing agreement was prima facie unconstitutional); State v. Hunter, 831 P.2d 1033, 1035 (Utah Ct. App. 1992) cert. denied 843 P.2d 1042 (Utah 1992) (explicitly recognizing the split in authority among different jurisdictions); State v. Kappes, 550 P.2d 121, 124-25 (Ariz. Ct. App. 1976) (holding that a search by student advisors was reasonable). 16 The language used in many dormitory search cases is likewise confusing and
contradictory. Opposing values involved in a college setting are in direct tension
with each other. Universities are expected to “promulgate and to enforce
reasonable regulations designed to protect campus order and discipline and to
promote an environment consistent with the educational process.” Moore v.
Student Affairs Comm. of Troy State Univ., 284 F.Supp. 725, 729 (M.D. Ala.
1968). While at the same time, students do not shed their constitutional rights at
the schoolhouse gate. See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 506 (1969).
The balance required between these two fundamental principles makes it
imperative that this Court address the issue of how to weigh out these competing
interests.
A University’s Authority
This Court should also issue guidance on whether university officials have
authority to summon law enforcement once an illegal substance has been found in
a dormitory.
17 The court of appeals’ decision framed its entire discussion around whether
dorm personnel could consent to the officer’s entry into the dorm room. 6 See State
v. Rodriguez, 2015 WL 5714548 at *5.
The court of appeals cited to a footnote in Grubbs for authority that a
resident assistant may not consent to allow police into a dorm room. Id. at *6. The
court then cited extensively to Piazzola v. Watkins from the Fifth Circuit Court of
Appeals for support for the same proposition.
However, the footnote in Grubbs simply listed the cases cited to by the
Appellant in that case. See Grubbs v. State, 177 S.W.3d 313, 321 fn.2 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d). Those cases were not cited by the
First Court of Appeals as correct statements of law.
Nor does Piazzola directly resolve this question. Piazzola’s holding is
limited by its own text to the conclusion that a university has “no authority to
consent to or join in a police search for evidence of a crime.” 442 F.2d 284, 290
6 The Court of Appeals’ decision is dismissive of the State’s apparent authority argument claiming that the State “specifically argued that apparent authority was not addressed at all.” See State v. Rodriguez, 2015 WL 5714548 at *6-7. However, the Court of Appeals misquoted the State’s closing argument in its decision. The actual statement was: Additionally, even if you don't want to rely solely on Medlock, there is not only the doctrine of consent, there is also the doctrine of apparent authority. And Ms. Pryor, as an official at the university, would have had apparent authority to invite the officer in. That is something that has not been at all addressed. That would allow him the ability to step into the room. R.R. Vol. 2, p. 91. While admittedly not the State’s main argument at the hearing, the issue was certainly directly raised. 18 (5th Cir. 1971) (involving a search that was initiated by law enforcement, not
university officials).
As with searches of dormitories in general, authority from other jurisdictions
is split on this issue also.7
There is no case law from either this Court or the Supreme Court of the
United States that directly addresses this issue, therefore, this Court should grant
discretionary review.
Conflict with decision from First Court of Appeals on same issue Finally, this Court should grant this petition because the court of appeals’
decision conflicts with Grubbs v. State from the First Court of Appeals.
As articulated above, different jurisdictions have approached searches of
college dormitories from different perspectives. Cases such as Piazzola and
Devers, which find very little, if any, distinction between a residence and a dorm
room, lie at one end of the spectrum. While cases such as Hunter, Medlock and
Kappes acknowledge the unique nature of life in a dormitory and lie at the other
end of the continuum.
7 See Medlock v. Trustees of Indiana Univ., 738 F.3d 867, 873 (7th Cir. 2013) (holding that student inspectors acted sensibly in summoning a university police officer once marijuana was located); State v. Kappes, 550 P.2d 121, 124 (Ariz. Ct. App. 1976) (holding that student resident advisors were justified in admitting law enforcement into a dorm room once marijuana was discovered); Com. v. McCloskey, 272 A.2d 271, 273 (Pa. 1970) (holding that a university could not consent to allow police to search a dorm room). 19 While no obvious contradictions appear from the text of the decisions in
Grubbs and the case at bar because of the factual differences between the two
cases,8 each case represents a different approach to handling the search of
dormitories.
The reasoning in Grubbs clearly is aligned with and supportive of the cases
which recognize that a university has unique obligations and duties that may affect
a Fourth Amendment analysis.
Grubbs carefully distinguish itself factually from Piazzola. Grubbs v. State,
177 S.W.3d 313, 320-21 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
Grubbs also cites approvingly to Hunter as support for the conclusion that a
student may waive Fourth Amendment rights by signing a housing contract. Id. at
319.
However, the court of appeals’ decision in this case aligns itself with
Piazzola. The court of appeals cites to Piazzola extensively and approvingly
without any acknowledgement of the significant factual differences. See State v.
Rodriguez, 2015 WL 5714548 at *4-6.
8 In Grubbs, the defendant was present during, and personally consented to, the search. Grubbs v. State, 177 S.W.3d 313, 316 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). In the case at bar, the defendant was not present until after law enforcement had entered the room and seen the illegal items. State v. Rodriguez, 2015 WL 5714548 at *1. 20 This different approach by two different courts of appeals in Texas will
result in confusion as courts attempt to apply two different and opposing
perspectives.
PRAYER FOR RELIEF Therefore, the State respectfully requests that this Court grant discretionary
review.
Respectfully Submitted, /S/ MICHEAL B. MURRAY MICHEAL B. MURRAY 35th District Attorney State Bar No. 00792955 200 S. Broadway, Ste. 323 Brownwood, Texas 76801 (325)646-0444/Fax:(325)643-4053
CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing
Petition was mailed by U.S. Mail to Sharon Diaz, Attorney at Law and Matthew
Wright, Attorney at Law, 315 N. 2nd Street, Rosebud, Texas 76570, on the 26th day
of October, 2015.
/S/ MICHEAL B. MURRAY MICHEAL B. MURRAY
21 CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing
Petition was mailed by U.S. Mail to the State Prosecuting Attorney, Lisa McMinn,
P.O. Box 12405, Austin, Texas 78711, on the 26th day of October, 2015.
CERTIFICATE OF COMPLIANCE This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
4,472 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
22 APPENDIX A
23 APPENDIX B
24 APPENDIX C
25 APPENDIX D