Gone to the Dogs?

• By Jacqueline Farideh Wernz
• 07/01/10

In the fall of 2006, a Texas high school’s administration learned of a marijuana problem among its students. The school district’s written policies — which prohibited drug possession and use on school grounds — had failed to solve the problem. Administrators decided to allow police officers with drug detecting canines to sweep the school for drugs. The dogs did not sniff students’ bodies, but students were forced to remain in their classrooms longer than usual, leave their belongings in their classrooms and wait in the hallway while the dogs smelled their property in the classrooms. Marijuana was found in a student’s possessions, and she challenged the constitutionality of the sweep when she was criminally charged for drug possession.

Two years later, in the summer of 2008, the school board of a Connecticut high school ordered a similar canine sweep of student cars and lockers. It is unclear whether there was any increase in student drug use at the time. During the sweep, students had to “stay put” — they could not leave their classrooms unless an emergency occurred. After the sweep, parents of some students filed a lawsuit to prohibit similar canine sweeps in the future.

Were these canine sweeps constitutional? Two recent court decisions held that, under the federal Constitution, they were. The decisions are a reminder to school officials that canine sweeps can be a valuable campus security tool. However, the United States Supreme Court has not ruled on the constitutionality of canine sweeps in schools, and courts have made clear they are willing to closely scrutinize the decision to conduct a sweep before declaring a sweep constitutional. Moreover, not every court in every jurisdiction has addressed the issue, and state constitutions may provide more protection to students in certain states than in others. Thus, it is essential that districts consult legal counsel regarding the specific federal and state law governing their district before implementing a canine search. The following list of general factors is meant to provide a basic understanding of when a canine sweep might be warranted in a school.

The Fourth Amendment
The most common challenge to canine sweeps is that they constitute unreasonable searches and seizures. Notably, however, students’ rights against searches and seizures are more limited in the school environment than in the general public. Under the federal Constitution, school officials and police officers acting on their behalf need only meet a reasonable suspicion standard to conduct a search or seizure, as opposed to the probable cause standard police officers must meet with the general public. A school search or seizure is “reasonable” when the measures adopted are reasonably related to the objectives of the search and are not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

The majority of courts to address the issue have held that canine sweeps of inanimate objects are not “searches” under the federal Constitution. A majority has also found that once a dog alerts on student property, probable cause exists to search that property and even the student’s person in certain circumstances. In contrast, canine sweeps of students’ bodies are generally found to be “searches” and should only be conducted if there is individualized suspicion that the student is involved in drug-related activities. Thus, an alert by a dog on a student’s body is unlikely to justify any further search of the student.

Some courts have found that canine sweeps are “searches” under state constitutions, which means that they may only be conducted if there is a reasonable basis to do so. Moreover, even those courts that find that canine sweeps are not “searches” may nonetheless address the reasonableness of the sweep for other reasons. For instance, a court might consider whether the decision of a district to make students “stay put” or to put the school on “lock down” during the sweep constitutes a seizure under the Fourth Amendment. For these reasons, schools should take steps to ensure that there is a reasonable basis for a canine sweep before conducting a sweep. The following are some factors that should be considered.

Need for the Sweep
In most cases where canine sweeps and related seizures have been found constitutional, the school district has documented a recent increase in drug use or possession among the general population of students at school. Some cases, like the Connecticut case mentioned above, have approved canine sweeps and related seizures in situations where no record of serious drug use has been documented at the school to justify the sweep, suggesting that, in at least in some jurisdictions, a documented history of drug use among students is not required before a sweep and related seizure is warranted. However, because of the uncertainty, the cautious approach would be to only use a canine sweep if the district can document a recent increase in student drug activity.

Authority for the Sweep
A district’s own policies and procedures should give officials the authority to conduct or oversee a canine sweep when necessary. A policy should be in effect even if state law specifically grants districts authority to conduct canine sweeps. For instance, Section 10-22.6 of the Illinois School Code explicitly permits school officials to conduct canine sweeps, but that does not remove the need to have a policy allowing canine sweeps on the books.

School policy should also prohibit drug possession and use by students at school and at school-related events and indicate that students have no expectation of privacy in property brought on school grounds.

Notice of the Sweep
Parents and students should receive copies of relevant policies, and other efforts should be made to remind parents that their children have no expectation of privacy in property brought or stored on school grounds. In most jurisdictions, notice of the specific date and time of a sweep is likely not required.

Procedure for the Sweep
Districts should implement a “stay put” or “lock down” during the sweep, to limit students’ ability to remove drugs or paraphernalia once a sweep has begun and to protect students from canine sniffs of their persons. When implementing a “stay put” or “lock down,” however, a district should not put unreasonable limitations on student movement. School administrators should avoid locking school doors, for instance (although personnel may be stationed by the doors to prevent students from leaving without permission during the sweep). School officials should also not refuse reasonable requests to use the restroom or to leave school in an emergency. Students who are granted exceptions to the “stay put” or “lock down” rules should be supervised by an employee.

Another important procedure for canine sweeps relates to choosing the classrooms or students whose property will be swept. General provisions prohibiting discrimination are equally applicable to a canine sweep, and so discrimination against certain groups should be avoided. For instance, even if a certain group of students may be suspected to be involved in drug activity, the canine sweep should address all students or random selections of students, not just that particular group of students.

Procedure for a Post-Alert Search
Although most courts to address the issue have unequivocally held post-alert searches are warranted under the Fourth Amendment, a growing number of judges have begun to question whether canines are reliable enough to support post-alert searches. Districts should thus take steps to document the reliability of canines used in a school sweep as support for any post-alert search conducted. It is unclear what documentation is required, but districts should make some good faith effort to document the reliability of dogs used before conducting a canine sweep.

Jacqueline Farideh Wernz is an associate in the education practice at the law firm of Franczek Radelet P.C. in Chicago, Ill. She represents educational institutions, including public school districts and higher education institutions in various general education law matters, including school business operations, safety and security matters. She can be reached at 312/786-6137 or [email protected].