Appeals Court Upholds Dogs Sniffing Student Backpacks
Guest post by Mark Walsh. Cross posted from The School Law Blog.
A federal appeals court on Monday upheld a dog-sniff of a student's backpack for illegal drugs at school.
A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, held unanimously that the five-minute dog-sniff of student belongings in a high school classroom while students were not present did not violate the Fourth Amendment protection against unreasonable searches and seizures.
The panel was not in full agreement that separating backpacks and other belongings from students for the dog-sniff constituted a "seizure." But assuming it was, "we conclude that the seizure was part of a reasonable procedure to maintain the safety and security of students at the school," the court said in Burlison v. Springfield Public Schools.
The case concerns an April 2010 sweep of student belongings at Central High School in Springfield, Mo. At the invitation of school officials, who were concerned about pervasive student drug use, deputies from the local sheriff's office brought two drug dogs into the high school for sniffs of selected areas.
In the classroom of a student identified in court papers as C.M., students were instructed to exit the classroom and leave behind their purses, backpacks, and other belongings. The drug dog did not alert to anything in the classroom. C.M., then a freshman, believed his backpack was unzipped during that time.
C.M. and his parents sued the district and school and police officials under the federal and Missouri constitutions, arguing that the student's backpack was illegally seized and searched. A federal district court held that there was no seizure, and that even if the backpack had been unzipped, the suit did not name the officers who were in the classroom as defendants. The family appealed to press the seizure claim, though not the search argument.
In its March 4 decision, the 8th Circuit court panel said that high school students have a lesser expectation of privacy than the general public. C.M. "was only separated from his belongings for a short period of time while the deputy sheriff safely and efficiently completed the drug dog walkabout," Judge Diana E. Murphy wrote for the court. "Requiring students to be separated from their property during such a reasonable procedure avoids potential embarrassment to students, ensures that students are not targeted by dogs, and decreases the possibility of dangerous interactions between dogs and children."
The court noted that the 8th Circuit in a 2004 ruling invalidated a similar search of student belongings (when students were not present) carried out by school personnel, without the participation of drug dogs.
But a "drug-dog survey is minimally intrusive, and provides an effective means for adducing the requisite degree of individualized suspicion to conduct further, more intrusive searches," the court said. The school district demonstrated the need for a drug-dog procedure because of substantial evidence there was a drug problem in its schools, the court added. It cited U.S. Supreme Court rulings upholding drug tests of students in athletics and other competitive extracurricular activities to suggest that school officials do not need individualized suspicion to search student belongings as long as the circumstances of the search were reasonable.
In a concurrence, Judge James B. Loken said he did not believe C.M.'s backpack was seized, though if the drug dog had alerted to it and officials then searched it, "additional Fourth Amendment issues would be presented."
Neither opinion mentioned that the U.S. Supreme Court has two cases this term involving the use of drug-sniffing dogs. In a decision last month in Florida v. Harris, the court unanimously rejected broad certification for such police dogs. In a related case that is still pending, Florida v. Jardines, the justices are weighing whether the warrantless use of a drug-detection dog outside of a suspected marijuana "grow house" is an unreasonable search under the Fourth Amendment. Some legal analysts believe that case may have implications for the use of drug dogs in other contexts, including in public schools.
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