This seems to have slipped through the cracks and not invoked much comment.  The University of Indiana is proposing that Fraternities and Sororities and individuals living in those houses give up their right to be free from unreasonable searches.  As part of the contract to operate or reside in a Fraternity or Sorority they would have to agree to allow a search of the “entire premise” anytime by police or University officials. 

I find that this stance is really handy.  If I was in search of a Criminal Justice degree or a law degree I would be confident that rejecting Indiana University is the right choice. Knowledge of concepts of law and the constitution is rudimentary, at best, nonexistent at worst.

I am not a lawyer.  I’m just a broke down old narc with more that a passing familiarity with search and seizure law and consent.  I have conducted over a thousand searches; with a warrant, without warrant and with consent.

From where I sit I see so many things wrong with the approach proposed.  For example:

The central plank of this proposal seems to be that the search is a contract matter between the school, students and organization.  This is false. One must ask, “What is the purpose of a search?” The answer is, “to obtain evidence of violations.”There is a whole new set of rules that must be followed regarding consent, from a search and seizure standpoint. These rules determine if the item seized will ever see the inside of a courtroom.

Under current search and seizure law, the person who consents is telling the police that they can forgo the warrant requirement and probable cause is not required. Understand, when one consents to a police search, they are consenting to have their rights violated. (Most cops wouldn’t put it that way).

In order for that consent to be valid the police must show: (1) Consent is voluntary without threat or promise. (2) it is knowing, the person knows what the search is for and the extent of the search, (3) it is given by a person with apparent authority to give consent, and (4) the individual can withdraw the consent, stop the search at anytime. Only after the police have satisfied those requirements can they search. Items obtained as a result stand a pretty good chance of being admitted as evidence to support a criminal charge.  

I have rejected a consent to search or stopped a search once begun under consent to get a search warrant because I felt the the person who gave the consent was wavering.  Most cops I knew were scrupulous in obtaining consent because of the perception that “all cops lie”.

Have you spotted the points of disconnect? Contract law consent and search and seizure consent are two entirely different animals and they are not compatible.

Let’s put this into a scenario to demonstrate what I mean.  It’s 2:00 am on a Friday night and the campus police respond to a loud party at a Frat.  They are met at the door by a drunk frat rat that would do Blutto Blutarsky proud (we’ll make this easy) he’s sucking on a big old blunt (a marijuana infused cigar).

Yup, the police are coming in and the Blutto look alike is probably going to jail.  Under the contract the police can search the entire premise.  But what about the rules the cops have to act upon to obtain legitimate evidence? To search the common area they need the informed willing consent of a resident.  I’d want a Frat Rat officer. The Sorority girl won’t do.

What about the bedrooms?  Each individual has to consent to the search of his/her room or his/her half of the room.  The contract consent was given at the beginning of the semester. It was generalized and non specific.  It also promised three hots and a cot for signing.

The cops are confronted with the Blutto Blutarsky look alike now, in real time.  Under the rules the cops have to operate under Blutto has the right to be informed and refuse. A verbal refusal, at the time of the search, is going to carry more weight than the signed consent, days, weeks or months in the past.

So here are the cops if they follow university rules they are violating search and seizure rules, illegally seizing evidence and without evidence violating person(s) rights by making arrests absent probable cause.  If they refuse to violate search and seizure rules, make illegal searches and illegal arrests they are failing to enforce university policy. In their next job they will be saying, “You want fries with that?”

Is it that I’m so smart or that the university is so dumb? Neither. Colleges and Universities have given up on the American experiment. The default position is a leftist fascist centralized power requiring unquestioned obedience with no hindrance of inconvenient legal concepts. State law, federal law the Constitution are all barriers to the perfect nirvana that can be on campuses.

This proposal places the justice process and the campus cops outside the criminal justice system. A case made under this proposed rule, likely could not be prosecuted in any court in the United States. However, it can be pursued in a campus forum. The rules of evidence and search and seizure rules do not apply. Take an internet survey of campus hearing excesses; free speech prosecuted as hate speech, suspects brought before tribunals without charge, without representation, no the ability to confront accusers or the right to any meaningful appeal. This is the justice many campuses aspire to.

These are tactics reminiscent of a time when the KKK ran parts of America. What we are witnessing a cynical manipulation of the law, rules and  entities charged with enforcing the law.  Civil rights are something to be “got around” rather than a guarantee for all.  The ends justify the means.