Kentucky Supreme Court Roundup, May 2015: Fraternity Houses Receive the Same Protection as Private Residences

Colton Givens, KLJ Legal News Editor[1]

Aligning Kentucky with every jurisdiction to previously decide the issue, the Kentucky Supreme Court ruled on Thursday that a fraternity house receives the same Fourth Amendment protection as any other private residence.

Milam v. Commonwealth arose in the fall of 2010, when University of Kentucky Police received a tip that Delta Tau Delta fraternity member Daniel Milam was selling marijuana out of his room in the fraternity house.  Thinking that the rear double doors of the house facing Nicholasville Road were the front entrance, three UKPD detectives approached the doors and found they were unlocked and slightly ajar.  After no one answered their knocks, the detectives entered the foyer, announced their presence, and were shortly met by a fraternity member who led them up to Milam’s room.  There, the detectives observed the odor of marijuana; when Milam opened the door, they saw drugs in plain sight, and Milam was arrested.

In an opinion by Justice Cunningham, a unanimous Court found that the detectives conducted an unlawful search of the fraternity house.  The Fourth Amendment protection of a fraternity house was an issue of first impression in Kentucky, but the Court noted that every jurisdiction to address the issue has held that a fraternity house is more akin to private residence, rather than an apartment building or hotel.  In the latter categories, police may enter common areas without violating the residents’ reasonable expectations of privacy.  The Court’s decision in Milam means that police must now have a search warrant or an exception to the warrant requirement before entering fraternity houses in Kentucky.

The Court also held that by entering the house, the UKPD detectives exceeded the permissible scope of the “knock and talk” procedure, because they went beyond the area generally open members of the public.  The facts indicated that although the back door was ajar, the surrounding circumstances indicated that members of the public at large were not welcome to simply walk into the fraternity house.  Finally, the Court held that consent to the entry was not freely obtained from any fraternity member.  The Court suppressed the evidence obtained from the search, and remanded the case to Fayette Circuit Court for further proceedings.

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In another noteworthy case, Commonwealth v. Duncan, the Court held that police do not violate Kentucky’s Implied Consent law by giving an allegedly intoxicated driver the choice of only a blood test, rather than a breathalyzer test.  Here, after the defendant failed field sobriety tests, an officer gave him only the choice to take a blood test; the defendant’s request for a breathalyzer test was denied.  According to the Court, the plain language of KRS 189A.103 gives police the option to offer blood, breath, or urine tests, but does not which tests must be offered to the suspect or in what order.

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In Q.M. v. Commonwealth, the Court addressed the rights of a juvenile during “informal adjustment” proceedings.  A 15 year-old accused of improper sexual behavior during class had his case informally adjusted on the condition that he move to Oklahoma to live with his father.  When he returned after five months, the juvenile court reinstated his previous charges, and he wound up in juvenile sex offender treatment.  After outlining the purposes of juvenile proceedings and the typical procedure to be followed, the Court held that once the juvenile court has instituted an informal adjustment rather than formal proceedings, the juvenile court may not then reinstate formal proceedings if the conditions of the informal adjustment are not met.

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Finally, the Court held in Coppage Construction Co. v. Sanitation Dist. No. 1 that sanitary sewer districts in Kentucky are not entitled to sovereign immunity.

These recent cases and others from the Kentucky Supreme Court can be accessed by viewing the Supreme Court Minutes.[2]

[1] J.D. expected May 2016.