                                                                          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.

                                              /S/ MICHEAL B. MURRAY
                                              MICHEAL B. MURRAY



                      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).



                                              /S/ MICHEAL B. MURRAY
                                              MICHEAL B. MURRAY




                                         22
APPENDIX A




    23
APPENDIX B




    24
APPENDIX C




    25
APPENDIX D




    26
