The Paralysis of Privacy: Jacob Houvener and the Constitutional Sanctity of Dorms

An appellate court in Washington State has just issued a bizarre opinion that stretches privacy to the breaking point. The court held campus police at Washington State University lack legal authority to conduct random patrols of dorm hallways. These common hallways were granted the same constitutional rights as the inside of a private home.

Campus Police Officer Matthew Kuhrt responded at about 5:45am to a report of a burglary in Room 323 of a highrise dorm tower. The Officer proceeded to search the dorm, starting on top and working his way down the floors. He heard music and voices in Jacob Houvener’s sixth floor dorm room. Officer Kuhrt thought these sounds were suspicious at that time in the morning.

Officer Kuhrt listened at the threshold of the dorm room, and heard two voices. The first said: I’m just paranoid we’re going to get caught” and the second: “I don’t think he would call the cops.”

These statements certainly sound like probable cause.

The Officer twice unsuccessfully tried a ruse to get them to open the door. They didn’t, so he tried the direct approach. He knocked on the door, identified himself as a police officer, and ordered them to open the door. Houvener opened the door, and Kuhrt ordered him to step out, and then proceeded to question him.

Houvener made incriminating statements that he had items, which did not belong to him, in the room

A second officer asked the guest to step out. Upon questioning, the guest also made incriminating statements.

Officer Kuhrt then arrested Houvener and read him his Miranda warnings. Houvener was then asked to go back into his room and retrieve the stolen items.

Sounds like great police work!

But not to four judges in the Evergreen State.

The trial judge suppressed the evidence and dismissed the charges with prejudice. The judge relied on several factors to hold that the suspect had a constitutionally protected expectation of privacy in the common hallway.

The dorm floor was for men only, a common bathroom was shared across the hall from Houvener’s room; each floor has a common study room; each floor is only accessible by passkeys; and visitors are not allowed on the floors between 2am and 6:30am.

Not only was the dorm hallway viewed as the equivalent of private property, but the Officer lacked the right either to listen at the door or order the student out of the room.

The appellate court agreed “with the trial court’s thoughtful analysis,” which only shows the bankruptcy of the appellate opinion.

This dorm’s layout is common to many dorms. A reasonable expectation of privacy certainly exists in each dorm room, as long as the door is closed. But we do not have expectations of privacy in common areas. If, for example, the students are using illicit drugs in a zero-tolerance dorm, a police officer randoming patrolling the halls would be precluded from taking action because, according to the Washington court, he has no right to be there, even if the aroma is blowing out the door.

The next two questions for Washington State are if the University could even punish Houvener and the other student for the theft and the braking and entering of another student’s room on a floor they should not have even been on, and if Officer Kuhrt will now be liable for violating the constitutional rights of Houvener. Such is the absurdity of the court’s WAZZU opinion.

At a time when we are increasingly concerned about campus security, drug and alcohol abuse, date rapes, shootings and knifings in dorm rooms, and burglaries, the court has disarmed one of the most effective means to improve campus security, student safety, and reduce campus crime.

The opinion was based on the 4^th Amendment to the United States Constitution, so the final word will be by the U.S. Supreme Court if the case goes that far. The judges could cite no federal courts that have held common dorm hallways to be private.

In the meantime, the University should include in the dorm contracts a statement to the effect that no expectation of privacy shall exist in the common areas, and that university police will randomly patrol the dorm hallways.