SJC ruling tosses out evidence in BC students’ drug case

By Martin Finucane
Globe Staff / November 18, 2010

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The state’s highest court ruled yesterday that cocaine, marijuana, and psilocybin mushrooms allegedly found in the room of two Boston College students in 2007 cannot be used as evidence in their trial.

The Supreme Judicial Court said it agreed with a Superior Court judge that prosecutors had not met their burden of proving that the two students had consented to a search of the room by campus police.

“The Commonwealth failed to satisfy its burden to prove that consent was freely and voluntarily given,’’ the court said in an 11-page decision written by Justice Robert Cordy.

The SJC ruling overturned a decision by the Massachusetts Appeals Court, which found in December 2009 that police had acted within their rights when they searched the room.

Daniel Carr and John Sherman faced charges of trafficking in cocaine, possession with intent to distribute psilocybin mushrooms, and possession with intent to distribute marijuana after the search of their room in February 2007. Psilocybin mushrooms are a psychedelic substance.

While prosecutors argued that the students had given campus police officers permission to search the room, with the students verbally agreeing to fill out a consent form, Superior Court Judge Linda E. Giles found that officers had given discrepant testimony about what the students had said that night.

The SJC also said that the consent forms were only partially filled out, with the students signing the half that acknowledged they were waiving their Miranda rights, but not signing the other half, which consented to the search.

“In sum, the evidence before the judge was equivocal and supported her conclusion that the Commonwealth had not met its burden,’’ the high court said.

The court pointed out that Giles had also found that, even if consent had been given, there were questions about whether it was given voluntarily.

The Appeals Court ruling had troubled some civil liberties activists because it found that campus police who are enforcing university policies operate under somewhat different rules when it comes to restrictions on searches under the US and state constitutions.

The SJC, in yesterday’s ruling, did not address those issues, however, saying, “Because the drugs and other evidence will be suppressed, we need not decide whether the initial entry into the room was lawful.’’

Middlesex District Attorney Gerard T. Leone Jr., whose office prosecuted the case, said, “We still believe that the initial police entry into the dormitory room was permitted under the University’s Residency Conditions, and the SJC did not rule on that very issue.

“Dormitory searches are conducted to ensure the safety and security of students and faculty members on campus and are essential when authorities believe a crime may have been committed, as here,’’ Leone said in a statement. “However, we must accept the SJC’s decision that there was insufficient evidence to prove that there was a voluntary consent by the defendants to search their room, and therefore the case cannot proceed without the evidence seized within that room.’’

Martin Finucane can be reached at