This year a series of troubling episodes occurred in several fraternities nationwide. There was the viral video of a racist chant by Sigma Alpha Epsilon members at University of Oklahoma; the suspension of Penn State's Kappa Delta Rho chapter pending an investigation regarding Facebook photographs of drug sales, hazing and unconscious women; the offensive pledge book of the Pi Kappa Phi at North Carolina State University; and the criminal charges filed against members of the Sigma Alpha Mu fraternity at the University of Michigan for more than $100,000 worth of damages to a Michigan resort.
It was against this backdrop that Kentucky's highest court recently rendered its decision in Milam v. Commonwealth of Kentucky. Milam was a member of the Delta Tau Delta fraternity at the University of Kentucky facing drug trafficking charges after a search of his leased fraternity house bedroom—to which he consented—revealed marijuana, Adderall pills, drug paraphernalia and a fake driver's license. However, at trial Milam argued to suppress that evidence, arguing it was obtained after an unlawful entrance and search of the fraternity house in violation of the Fourth Amendment. Absent that entry, the police officers would not have climbed the stairs to reach the second floor, where fraternity residents have their individual rooms. Prosecutors argued that entering the first floor of the fraternity house was analogous to entering a common area.
The Court said "a basic tenet of Fourth Amendment law is that warrantless searches and seizures inside a home are presumptively unreasonable." But is a fraternity house full of unrelated people more like an apartment building or hotel? Why would this matter as it relates to the rights of law enforcement and privacy protection? Apartment buildings and hotels have common areas that are open to the public and, as such, law enforcement can enter those areas without consent. On the other hand, entering a private residence requires consent in the absence of exigent circumstances. The Kentucky Court of Appeals said there was no reasonable expectation of privacy in the internal foyer of the frat house, finding it significant that the exterior lock was broken and the common door was ajar. The Supreme Court rejected that sidestep argument, noting "the doorless threshold of the shanty may defy entry to the state with the same constitutional empowerment as the barred and bolted mansion."
Thus, what matters is the expectation of privacy held by the residents of a fraternity house. The Court highlighted several elements informing the expectation. First, there was the proximity of the fraternity's "nice room" to the foyer area where the officers entered without consent. The Court explained that regular fraternity activities, meant to be closed to the rest of the world, took place in that room and there is no "nice room" equivalent in a hotel or apartment complex. Second, the officers "were not greeted by a scene out of the movie Animal House" suggesting that the residence was open to the public. Third, the bylaws of the fraternity required that the door used by the officers remained locked. Fourth, there was a private parking sign next to the rear entrance of the house. Fifth, the mere presence of a doorbell and a keypad lock (even if nonfunctional) indicated an endeavor to exclude. Given all of these considerations and taking into account rulings on this precise question from other jurisdictions, the Kentucky Supreme Court concluded that for purposes of search and seizure a fraternity house is a private residence.
The abundance of cases dealing with contested searches of fraternity houses may tell us more about fraternities than it does about the Fourth Amendment. Regardless, law enforcement now has a bright line rule to follow. If criminal activity is suspected within a fraternity house, bring a warrant.
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