Introduction
This is the second featured article segment on the topic of “Odd Cops” (those less familiar than City Cops, State Police, or County Sheriff’s Deputies). The series began a while back with a look at special deputies of the County Sheriff. A catalyst for the “Odd Cops” topic in general was the COA’s February 28, 2017 Opinion in Albee v. State, 71 N.E.3d (Ind. Ct. App. 2017) featuring a witless Purdue University Police Officer wholly unfamiliar with the concept of a line-up as opposed to that sort of one-man show-up likely to result in misidentification. See the 2017 Appellate Case Note titled “What do you mean line-up?”
Why would a college or university want to have its own police department? The first answer that comes to mind is that college/university leaders would prefer that municipal, county, and state police keep their distance while the school polices its own in a fashion less likely to result in bad publicity (for the school) or criminal consequences (for miscreant students).
Statutes and Rules
Here is a 1970’s version of legislation (applicable to public and private institutions) allowing the appointment of campus cops:
20-12-3.5-1 Authority of trustees to appoint police officers; uniform; oath of office:
Sec. 1. The governing board of Ball State University Board of Trustees, Indiana State University Board of Trustees, The Trustees of Indiana University, the Trustees of Purdue University, and the governing board of any other college, university, or junior college which is accredited by the North Central Association is authorized to appoint police officers¹ for the institution for which it is responsible, to prescribe their duties and direct their conduct, to prescribe distinctive uniforms for the police of the institution or campus, and to designate and operate emergency vehicles. Police officers so appointed shall take an appropriate oath of office in the form and manner prescribed by the appointing governing board, and shall serve at its pleasure.
– – – – – – – –
¹ So in enrolled Indiana Code
And here is a 1970’s version of the powers and territorial jurisdiction of such campus cops:
20-12-3.5-2 Powers and duties of police officers: Sec. 2
(a) Police officers appointed under this chapter have general police powers including the powers to arrest, without process, all persons who within their view commit any offense. They have the same common law and statutory powers, privileges and immunities as sheriffs and constables, except that they are empowered to serve civil process only to the extent authorized by the employing governing board; however, any powers may be expressly forbidden them by the governing board of the institution employing them. In addition to any other powers or duties, such police officers have the duty to enforce, and to assist the officials of their institutions in the enforcement of, the rules and regulations of the institution, and to assist and cooperate with other law enforcement agencies and officers.
(b) Such police officers may exercise the powers granted under this section only upon any real property owned or occupied by their institutions, including the streets passing through and adjacent thereto. Additional jurisdiction may be established by agreement with the chief of police and the municipality or sheriff of the county or the appropriate law enforcement agency where the property is located, dependent upon the jurisdiction involved. As amended by Acts 1978, P.L.2, SEC. 2012
Notably absent from this (superceded) legislation is any mention of formal police training or the expansion of territorial jurisdiction to off-campus areas other than by agreement with local police authorities.
While the cited 1970’s legislation covered both public and private institutions, subsequent legislation moved those provisions from Title 20 (of the Indiana Code) to Title 21 and split similar (but not identical) public school/ private school provisions into two separate Articles of that Title. Here is the current (2019) version of the “Jurisdiction” section applicable to (accredited) private universities, colleges, and junior colleges:
IC 21-17-5-5 Jurisdiction: Sec. 5
(a) This section applies only to a police officer who meets the minimum basic training and educational requirements adopted by the law enforcement training board under IC 5-2-1-9 as necessary for employment as a law enforcement officer.
(b) A police officer appointed under this chapter may exercise the powers granted under this chapter upon any real property owned or occupied by the educational institution employing the police officer, including the streets passing through and adjacent to the educational institution. An institution may extend a police officer’s territorial jurisdiction in accordance with subsection (c).
(c) An institution may extend a police officer’s territorial jurisdiction to the entire state, or any part of the state, if:
(1) the board of trustees adopts a resolution specifically describing the territorial jurisdiction of a police officer appointed under this chapter; and
(2) the board of trustees notifies the:
(A) superintendent of the state police department; and
(B) sheriff of the county in which the institution is primarily located (or the chief of police of the consolidated city, if the institution is primarily located in a consolidated city); The institution shall provide the persons described in subdivision (2)(A) and (2)(B) with notice of the extended jurisdiction every two (2) years, by January 21 of the second year.
(d) If a police officer appointed under this section exercises the officer’s police powers outside of the county in which the institution is primarily located, the officer shall notify the sheriff (or, in the case of a consolidated city, the chief of police) as soon as practicable.
[Pre-2007 Higher Education Recodification Citation: 20-12-3.5-2 part.]
As added by P.L. 2-2207, SEC.258. Amended by P.L. 30-2011, SEC.1.
By contrast here is the current (2019) version of the “Jurisdiction” section applicable to state educational institutions:
IC 21-39-4-6 Jurisdiction of police officers appointed under this chapter: Sec. 6
(a) A police officer may exercise the powers granted under this chapter as follows:
(1) A police officer may exercise the officer’s powers upon real property owned or occupied by the state educational institution employing the police officer, including the streets passing through and adjacent to the state educational institution.
(2) This subdivision applies only to a police officer who meets the minimum basic training and educational requirements adopted by the law enforcement training board under IC 5-2-1-9 as necessary for employment as a law enforcement officer. An institution may extend a police officer’s territorial jurisdiction to the entire state, or to any part of the state, if:
(A) the board of trustees adopts a resolution specifically describing the territorial jurisdiction of a police officer appointed under this chapter; and
(B) the board of trustees notifies the:
(i) superintendent of the state police department; and
(ii) sheriff of the county in which the institution is primarily located (or the chief of police of the consolidated city, if the institution is primarily located in a consolidated city); of the boundaries of the extended territorial jurisdiction.
The institution shall provide the persons described in clause (B)(i) and (B)(ii) with notice of the extended jurisdiction every two (2) years, by January 31 of the second year.
(b) If a police officer appointed under this section exercises the officer’s police powers outside of the county in which the institution is primarily located, the officer shall notify the sheriff (or, in the case of a consolidated city, the chief of police) as soon as practicable.
[Pre-2007 Higher Education Recodification Citation: 20-12-3.5-2(b).]
As added by P.L.2-2007, SEC.280. Amended by P.L.30-2011, SEC.2.
Under the current legislation there is a subtle dichotomy in the provision for the law enforcement training of campus cops. IC 21-39-4-6(a)(1) applicable to state schools describes the “default” campus-wide zone of territorial jurisdiction as it was in the 1970’s. Then section 6(a)(2) describes the exception of expanded territorial jurisdiction (up to state-wide jurisdiction) for campus cops who have completed formal law enforcement training and who have also had expanded jurisdiction “bestowed” upon them by resolution of the school’s board of trustees.
On the other hand, IC 21-17-5-5 applicable to private schools has no provision granting campus-wide jurisdiction to campus cops who have not met the law enforcement training requirements. I find it inexplicable that the wholly untrained campus cops at a state school can exercise on-campus police powers while they would be without police powers in the employ of a private school. Inexplicable or not, it is the law. For the police academy graduate working for a private university, there is the same opportunity as in state universities for the expansion of territorial jurisdiction beyond the campus to other parts of the state and perhaps to all of it.
Those looking for statutes respecting the law enforcement training academies may find them at IC 5-2-1. Those looking for related administrative rules may find them at 250 IAC Article 2. I find those administrative rules to be insufficiently specific so as to make the actual requirements (such as: BMI; time allowed to run a mile; or marksmanship pass/fail standards) indiscernible. At IC 5-2-1-9 there is the ignored statutory mandate that the governing board’s administrative rules “establish” minimum standards in at least 10 different fields of qualification or training.
Campus cops duly appointed by the trustees of a private school are presumptively endowed with “general police powers” according to IC 21-17-5-4(a)(1) subject to restrictions imposed by the trustees under the authority of IC 21-17-5-4(b). According to IC 21-17-5-4(a)(2) campus cops are also granted that ITCA protection enjoyed by state police and sheriffs.
State school campus cops are likewise granted “general police powers” by IC 21-39-4-5(a)(1) subject to board restrictions imposed under authority of IC 21-39-4-5-(b). There is no express provision here for a grant of ITCA protections to state school campus cops. Still, they have such protection. Klobuchar v. Purdue University, 553 N.E.2d 169 (Ind. Ct. App. 1990)
Case Law
Now for a look at the case law on our topic of campus cops. I will ignore those appellate opinions which mention campus cops only in passing in favor of those opinions dealing with campus police as an actual subject of analysis.
The case law review begins with Finger v. State, 799 N.E.2d 528 (Ind. 2003), an interlocutory appeal of a trial court’s denial of a criminal defendant’s motion to suppress evidence collected off-campus through the intervention of a Butler University police officer who approached a parked “suspicious vehicle” and “detained” its driver by retaining his driver’s license longer than necessary for a license/warrant check. During the detention period there was a radio report of an armed robbery at a nearby liquor store. Officer Richard Young had already noticed a knife in the back seat of the vehicle and ammunition in the front seat. It seems that Officer Young happened upon the intended getaway car for the liquor store heist and that he did so at the most awkward of times. Gregory Finger (the “driver”) was charged with robbery of the liquor store and related offenses. He moved to suppress evidence of the knife and ammunition seized from the parked vehicle and his resulting statements to Indianapolis police. Finger’s motion asserted typical Fourth Amendment/ Section 11 suppression grounds and also the status or authority of campus cop Richard Young while off-campus.
The SCOTSI “noted” that Butler University Campus cop Richard Young was a “state actor” for purposed of constitutional restraints on search and seizure. The SCOTSI cited IC 20-12-3.5-1, supra for its delegation of state police powers to the campus police. While the former law expressed at IC 20-12-3.5-2(b), supra, contained a “default” territorial limit for campus cops there was no mention of that limit (or its exception) in the SCOTSI Opinion. Justice Rucker was alone in dissent on conventional search and seizure grounds.
The second (and last) relevant campus cop case in the SCOTSI is ESPN v. University of Notre Dame Police Department, 62 N.E.3d 1192 (Ind. 2016). The dispute arose from the junction of the Access to Public Records Act (APRA) and the law of (private) University police departments as expressed at IC 21-7-5. The back story is that ESPN investigative reporter Paula Lavigne made an APRA request to the Notre Dame Police Department for “incident reports” wherein any of 275 student athletes were designated as a victim, suspect, witness, or reporting party. The Department denied Lavigne’s request on the assertion that the police department of a private university is not a “law enforcement agency” for purposes of APRA. When ESPN filed a formal complaint with the Public Access Counselor, the decision held that the Department (having police powers) was a “public law enforcement agency” for all future APRA requests.
ESPN again requested incident reports plus daily logs (generally accessible under APRA), and the Department again declined. After another formal complaint the Public Access Counselor held that the daily logs must be released¹ and that incident reports may be released. Then ESPN filed suit against the Department alleging violation of APRA.
The trial court ruled in favor of the Department, holding that it was neither a “law enforcement agency” nor a “public agency” for APRA purposes. The COA reversed at 50 N.E.3d 385 (Ind. Ct. App. 2016) on the theory that the Department was a “law enforcement agency” in that it exercised the government function of police powers.
The SCOTSI vacated the COA Opinion with a grant of Transfer and held first that the (private university) Police Department was not a “law enforcement agency” for APRA purposes in that it was not “of any level of government.” Then the SCOTSI demonstrated its hair-splitting acumen on the “public agency” debate. According to the APRA definition an agency or office exercising executive power of the state is a public agency. The SCOTSI elected the view that any state power had been delegated to the university trustees (who appoint officers and prescribe duties) rather than to the Department itself.
The greater legal questions in the ESPN case were rendered moot by legislative intervention prior to the SCOTSI’s November 16, 2016 Opinion date. Here is IC 5-14-3-5(d) effective July 1, 2016. Among other related APRA changes showing the General Assembly’s discontent with administrative and/or judicial holdings on the subject, here is IC 5-14-3-5(d):
(d) A private university police department shall make available for inspection and copying:
(1) information created or received after July 1, 2016, that is described in subsections (a) and (b); and
(2) information (including the daily log):
(A) created in compliance with; and
(B) to the extent that public access is required under;
20 U.S.C. 1092² and 34 CFR 668.
Now for some of the COA Opinions, including a second look at the Butler University Police Department, with which I begin. The case is Jones v. State, 54 N.E.3d 1033 (Ind. Ct. App. 2016). Jennifer and Jamaal Jones resided near the Butler University Campus with each other and their children. The cited COA case was their unsuccessful appeal of the trial court’s denial of their motion to suppress evidence discovered during a warrantless search of their residence.
Around 1:08 a.m. Officer Chris Nelson of the Butler University Police Department made an off-campus traffic stop. Jennifer Jones was the driver. There was a “strong odor of marijuana” from within her vehicle. After other BUPD officers arrived, Officer Nelson conducted a “probable cause search” of the vehicle and discovered both marijuana and controlled substance pills. As she was arrested Jennifer announced that her children were home alone. Officer Nelson informed her that officers would check on the children and make arrangements for their safety.
After unsuccessful police efforts to reach the children by telephone and by knocking at the door, Officer Nelson decided to take Jennifer’s house keys (no mention of consent) and let himself into the residence. This occurred only after Jennifer (in custody) had contacted her mother-in-law (to attend to the children). In other words, Nelson’s opportunity for a warrantless search of the Jones residence was passing by.
Officer Nelson entered the residence and smelled raw marijuana and saw “remnants” on the coffee table. A search of the residence (master suite and basement) continued after the three children (ages 6, 9, and 12) were found safe in bed. The master suite search revealed a glass jar containing marijuana. The basement contained “lighting systems” and marijuana plants. Jennifer and Jamaal were both charged with multiple offenses.
The motion to suppress argument included the claim that the BUPD exceeded its jurisdiction when it conducted the “welfare check” on the children. It was noted that the trustees of Butler University under authority of IC 21-17-5-5(c)(1) had generally extended BUPD jurisdiction to the entire state and then restricted the off-campus Marion County exercise of police powers to situations of danger that is subject to remedy by immediate action or to situations of providing “aid . . . during an emergency.” The descriptions of these conditions to off-campus Marion County jurisdiction were so clumsy and inarticulate that they had to have come from police testimony rather than from an actual written resolution of the University Trustees. Trial counsel may have been neglectful in this regard by not insisting on actual text from a certified document.
If the descriptions of the conditions to off-campus Marion County Jurisdiction were accurate, then (ironically) Officer Nelson was probably without jurisdiction to make the precipitating traffic stop. Jennifer’s trial counsel dropped the ball again by failing to complain of the traffic stop (in the motion to suppress) and then adding a fruit-of-the-poisonous-tree argument.
Here are some less interesting but still relevant COA decisions. First among these is Myers v. State, 714 N.E.2d 276 (Ind. Ct. App. 1999). Valparaiso University law student Bristol Myers was busted by a VU campus cop for drunk driving “near” the campus. He argued unsuccessfully in the trial court and on appeal that Law Enforcement Academy training was required of campus cops under the 1970’s version of the Title 20 legislation, supra. As mentioned in this Article that (now superceded) legislation did not require LEA training for campus cops at either state or private schools.
The next case is Severson v. Board of Trustees of Purdue University, 777 N.E. 2d 1181 (Ind. Ct. App. 2002) dealing with a student-on-student murder and the resulting wrongful death suit against the University, its Police Department, and Department Officers who (allegedly) provided inadequate protection to the victim who had reported a drug offender. The COA held for purposes of 42 U.S.C. § 1983 that the Department was not a “person” that could be sued but that its officers acting under color of state law are such “persons.” Still, the officers were entitled to summary judgment.
The final case is Morris v. State, 43 N.E.3d 692 (Ind. Ct. App. 2015) out of Marian University in Indianapolis. There the COA approved the campus cop’s pursuit and apprehension of a theft suspect commencing (perhaps) a block from campus. There was mention therein of a trial court exhibit in the form of a resolution of the University Board of Trustees extending the territorial jurisdiction of its campus cops to off-campus Marion county. The defendant’s suppression motion was overruled below, and the COA affirmed.
Recommendations
Let me close with advice to lawyers defending a person arrested³ by or searched by a campus cop. For private university campus cops, insist on proof of LEA training whether the police powers were exercised on or off campus. For off-campus activity of private school campus cops, insist on documentary proof of a board of trustees’ resolution of expanded jurisdiction and any conditions or restrictions thereof. Also insist on proof that the board of trustees has given requisite notice of such resolution to the superintendent of the state police and to the county sheriff (or chief of police in Indianapolis). Likewise for campus cops at state schools, except that such campus cops without LEA training seem to have on-campus authority.
Under IC 21-17-5-5(c) pertaining to private school campus cops and IC 21-39-4-6(a)(2) pertaining to state school campus cops a police officer’s territorial jurisdiction may be extended by board resolution. I take such grant to be to the individual officer and not to all qualified officers of a department. A general grant may be challenged, particularly as to officers who had not been appointed by the board as of the resolution date. Defense lawyers should not concede that any campus cop was appointed by the board of trustees when he may simply have been hired by a department chief. Concede nothing in defense of your client.
When an individual is confronted by a campus cop in a off-campus location how can he know whether the campus cop is outside his territorial jurisdiction? There is no way to know in real time at the point of arrest whether the campus cop has powers of arrest in that location. The question of territorial jurisdiction has to be settled much later in court. The individual needs to comply with the commands of the campus cop and subsequently hire a lawyer who reads the CLB.
Private police forces with expansive jurisdiction should not exist. Giving a college board of trustees’ resolution the force of law for off-campus areas is dangerous, chaotic, and absurd. My advice to the General Assembly is that it legislate to strip away the off-campus police powers of campus cops.
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¹ See the “investigatory records” exception to public access at IC 5-14-3-4(b)(1).
² 20 U.S.C. § 1092 (o) requires a “campus crime report” from educational institutions participating in federal student assistance programs.
³ While illegality of an arrest will not constitute a defense to most criminal charges, such illegality often will present suppression opportunities.
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