Order

NORTH CAROLINA
IN THE
SUPERIOR COURT OF
DURHAM, 3RD DIVISION

STATE OF NORTH CAROLINA

          v.                                    Case No. 6869-13

JASON CAVE,

          Defendant

MEMORANDUM AND ORDER
J. Hepburn

Defendant is charged with possession of marijuana and possession with intent to distribute pursuant to NC State Statute � 90-95(a). In this pre-trial motion, he moves to suppress the marijuana seized during a search of the common area of his dormitory on Fourth Amendment grounds. Defendant claims he had a reasonable expectation of privacy in the common area of his dormitory, and thus the warrantless search of the room by a government agent violated his Fourth Amendment rights. Accordingly, the defendant moves the Court to suppress the evidence found in the course of the illegal search of his residence.

Defendant's motion to suppress is DENIED. Because the defendant had no reasonable expectation of privacy in the common area of his dormitory, the actions of the maintenance man failed to constitute a "search" under the Fourth Amendment. Because the defendant's motion to suppress is denied, evidence seized during the search may be admitted at trial.

  1. FACTUAL AND PROCEDURAL HISTORY

    All facts are uncontested and this is a synopsis of the testimony.

    Over the past couple of years, Arch University, a private university in Durham, North Carolina, has experienced an increased rate of drug and alcohol abuse on its campus. Last year, a student died from a drug overdose that resulted in much bad publicity for the university. Consequently, Arch University immediately implemented a stricter alcohol and drug policy on campus and has been working with local police to control the situation.

    Jonathan Huntley is a maintenance man for Arch University. He has worked there for fifteen years. Specifically, he is in charge of the maintenance of three of the on-campus dormitories. He has a set of master keys, which allows him access to any student room for necessary minor repairs.

    Mr. Huntley has been a reliable informant to both the campus security and local police over his years at Arch University. In this role, Mr. Huntley routinely works with these authorities to solve student thefts and other minor crimes, as well as alerting them to students whom he believes may be selling illegal drugs. In fact, Mr. Huntley meets with campus security officer, Officer Petroff, on a weekly basis.

    Jason Cave is a student at Arch University. He lives in one of the on-campus dormitories and is in good standing at the school. Before the start of the term, Jason Cave signed a waiver stipulating that:

      Students are required to abide by the Arch University housing rules and regulations as set out in the student handbook. Arch University reserves all rights to enter and inspect student residence hall rooms at all times for health, safety and maintenance of the property and its students.

    Jason Cave was assigned Lloyd 72B, part of a suite in Lloyd Hall, one of the on-campus dormitories. Lloyd Hall is comprised of twelve suites of six single rooms. There are six separate entrances, each leading to two suites, one on the ground floor, and one on the second. Each suite contains six single rooms, a bathroom and a common living area. One of Mr. Cave's roommates testified that other than the janitors, only the six students residing in the suite had a key to the door to the suite. Individual dorms had separate locks.

    In November 2001, Mr. Huntley was called to Lloyd 72E to fix a broken window. Although the school instructs the students to keep all doors locked for their safety, many students prop open the doors to the dorms and their suites for convenience. When Mr. Huntley arrived at Suite 72, he found the door closed but not locked. As he had seen several students run in and out of the suite without using keys, he did not use his pass key to gain entrance. He began working on the window. Throughout his time spent repairing the room, students continued to enter and leave Lloyd 72. Lloyd 72E was directly across from the common living area. When leaving the room, he could see into the common room and noticed several seeds, a pipe, and other drug paraphernalia lying on a coffee table. Mr. Huntley looked around the common living room some more and noticed an open trunk with the name "Cave" painted on the side. Inside the trunk he found several baggies of marijuana and large amounts of cash. Mr. Huntley confiscated over 5 grams of marijuana from the common room. He immediately called Officer Petroff and informed him of his discovery. The police arrested and charged Mr. Cave with possession with intent to distribute under NC State Statute � 90-95(a). Mr. Huntley received a $5000 reward. Jason Cave challenges the search by Mr. Huntley as a violation of his Fourth Amendment rights.

  2. LEGAL ANALYSIS

    The Fourth Amendment states that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend IV.

    In determining whether the action of the government agent violated the Fourth Amendment, the court must examine whether the action was, in fact, a search. To be a search under the Fourth Amendment, the defendant must have a reasonable expectation of privacy from government intrusion. If the defendant did not have a reasonable expectation of privacy, no search occurred and we shall admit the evidence. If he did have a reasonable expectation of privacy, then the case turns on whether the warrantless search was valid under one of the exceptions to the warrant requirement. If no exception applies, the court must suppress the evidence of the search.

    To be a search, a person must have a reasonable expectation of privacy in the place or belonging in question. If the individual takes no steps to protect his privacy interests and leaves items accessible to the public, the mere fact that the police, and not the public, see the items does not render it a search. Courts in several circuits have found that there is no reasonable expectation to privacy in common areas. We agree.

    Mr. Cave made no efforts to keep his belongings private. He chose to leave his possessions in a common room, instead of his own room, where he could have excluded others. He left the door to the common room open and the door to the suite, in general, closed but not locked, allowing many other students, and whoever else desired, to enter. Even if locked, at least five other students, maintenance workers, and school officials could enter. His belongings were scattered on the table and in plain view. Those items he left in his footlocker were likewise unprotected from prying eyes, as the footlocker was open.

    For these reasons, the motion to suppress is denied.

IT IS SO ORDERED.