Question Presented
Whether the Fourth Amendment’s special need exception permits a school official with a trained canine unit, randomly and for the protection of students in a public school with a documented drug problem, to conduct a non-invasive canine sweep of the air around all the students in the classroom.
Whether the District Court properly determined that Plaintiff’s Fourth Amendment rights were not violated by the canine sniff of her person and her belongings.
Statement of the case
On October 25, 2021, Hawthorne Township High School had its first canine-sweep under its modified policy. In recent years, the school was experiencing a significant spike in the distribution and use of illegal drugs on its campuses. In response – and after a particular incident involving a canine sweep that failed to detect a student selling marijuana on campus by keeping the drugs in her pockets rather than in her property – the school revised its policy. Under the revised policy, the district authorized principals to have a trained canine unit enter classrooms with students present and sniff the air near the students’ bodies while they are at their desks.
On the morning of October 25, the specially-trained Labrador-mix, Ogie, along with his handler, Officer Schneider, went to six classrooms that had been randomly selected by the school’s principal, Defendant Post. Altogether, the team entered each classroom, walking through the aisles of desks, sniffing near students’ bodies and belongings.
In one of the classrooms, Ogie stopped near Plaintiff Darleen Roberts, a fourteen-year-old freshman. Ogie sniffed within two to three inches of her body for about ten seconds; during that period, some students laughed and made teasing remarks. Ogie then sat and appeared to look at Plaintiff’s midsection.
Plaintiff remembered a school demonstration and recognized that this meant the dog was alerting to her. She was upset by that. Plaintiff acknowledges that Ogie did not touch her. Plaintiff also acknowledges that Ogie and his handler spent about three minutes in total sniffing the students and their belongings in the classroom. Plaintiff states that Ogie probably “brushed” other students during this sweep and that it often moves close to students and gets excited when getting closer to a scent.
After speaking to the handler, Principal Post brought Plaintiff with her to the office. There, she called Plaintiff’s father. After gaining consent from both her father and plaintiff herself to search Plaintiff’s belongings and pat down her clothing, Principal Post could not find any contraband. Plaintiff claims that the dog’s alert was false and speculates about a residual scent of dog treats that she often kept in her pockets. However, the handler assures that Ogie is specifically trained not to respond to such scents.
After twenty minutes, Principal Post sent Plaintiff to return to class. Although she was not disciplined or followed up on, Plaintiff claims that she suffered embarrassment and damage to her name as a result of the dog sniff. This lawsuit ensued.
Argument
- The District Court Properly Held That There was a Search
A court will likely find that the dog sniff of Darleen was a search because it violated a reasonable expectation of privacy when she was in her classroom OR because it was intrusive upon the body. In Katz, the Court adopted a two-pronged test to determine whether an investigation is a “search” under the Fourth Amendment. Katz v. U.S. 389 U.S. 350 (1967). First, the person must have an expectation of privacy; second, the expectation must be one that “society is prepared to recognize as reasonable.” Id. at 347. At one time, it was not uncommon for a court to view school officials as authorities akin to parents not bound by the Fourth Amendment. See Mercer v. State. However, it is now well-settled that students maintain the right to some privacy in school. See Tinker. While not as extensive as the rights of average people– and limited by the school’s need to maintain order and a safe school environment– students have the right to keep certain things private. TLO. For example, a public school student has a reasonable expectation of privacy on items that are not necessarily related to academic activities, but which are proper and common items that students bring to school, such as planners, letters from friends and notes. TLO. However, neither students nor average people have a recognized privacy interest in having illegal substances. TLO.
Under this reasoning, when Darleen went to school, she had the right to maintain some privacy; however, she did not have the right to privacy over bringing drugs to school because it is not socially reasonable to do so. Ogie was trained to detect a wide array of drugs. Just like in ___, where . Darleen was search because her
A court will likely find that the sniff was a search because it was intrusive upon the body. The intrusion of a person’s body is higher than the intrusion of an object. See United States v. Bronstein, 2 Cir. 1975, 521 F.2d 459. The Supreme Court has long considered the specific bodily invasion one endures when assessing whether a search occurred. See Skinner v. Railway Labor, 489 U.S. 602 (1989); California v. Trombetta, 467 U.S. 481 (1984). The police dog sniffing Darleen at a mere two to three inches presents an even clearer instance of a search. B.C. v. Pluma finds that having one’s body examined in this manner is sufficiently more “embarrassing” than having property sniffed, and can be distinguished from the context of Place where unattended suitcases were sniffed. 192 F.3d at 1260. Given that Darleen was a 14-year old girl, odor is more personal and intimate in younger people who are already self-conscious of their bodies. Given the nature of an up-close dog-sniff with Ogie sniffing up her right leg and hip a mere “two to three inches.” Schneider Dep. ¶¶ 7-8, the court will likely hold that this was a search.
A court will likely find that Darleen’s expectation of privacy was also socially reasonable because Darleen was sniffed in front of all her peers and her teacher and the principal. Compl. ¶ 2. When the dog alerted the officer and principal, it also alerted all her classmates, her teacher, Darleen herself, and later, her father. Answer to Compl. ¶ 3. Unlike in Vernonia, in which the laboratory did not learn the identity of the students whose samples it tests, Darleen’s results were on full display to the crowd around her. Roberts Dep.¶ 9. Furthermore, Darleen did not expect the search. In this case, Darleen was in her classroom reading a book. it was also the first time in Darleen’s entire life that she was sniffed directly. Roberts Dep. ¶ 1. This was a new experience for her, and she was not expecting it prior to the lockdown announcement only minutes prior. As such, she listened for instructions from the Principal Post to know what to do, “Do not move around, “Stay still.” Roberts Dep. ¶ 2.
Reveals Private Info
A court would likely find this dog sniff was a search because it could reveal otherwise private information beyond what Officer Shneider could. Horton recognizes that dog-sniffs are “unquestionably different” from a human sniffing something. 677 F.2d at 471; otherwise, why would any cogent law enforcer spend the money, time, and resources needed to train the dog instead of sending the handlers off to sniff? The trained dogs — frequently described as “giant olfactory nerves” — detect odors well outside the range of human senses. In Kyllo v. United States, the Court held that the law enforcement’s use of a thermal imaging device to read the heat emanating from a house did violate the Fourth Amendment. Kyllo, 533 U.S. 27 (2001). The Court found that that information obtained about the insides of a home, even without any physical intrusion at all, was a search. Id. Even though the scan just took a few minutes, it was not in general use, and broke the dweller’s expectation of privacy. Id. at 28. This case refused the emanations theory and Justice Stevens’ dissent noted the consequences of doing so, explaining that this would prohibit “mechanical substitutes for dogs trained to react when they sniff narcotics.” Id.
Not like Horton because it was about luggage
This case is similar to Kyllo because Ogie was not just an enhancement of the officer’s own senses. Nor was he mere augmentation. Rather, Ogie accessed information that would have otherwise been utterly private and imperceptible to the human senses of the officer. Officer Schneider could not detect the presence or absence of narcotics based on odor, but the dog could. Peter Lee confesses that in the five alerts in 2018, he “…seriously doubt [s] [they] would have caught these students without help from the dogs.” Lee Dep. ¶ 4. Perhaps the officer could smell marijuana, which is a primary substance the Hawthorne school was concerned about, but in a class of public school students, there would be virtually no way to distinguish where precisely the odor came from. Lee Dep. ¶ 4. Just like the usage of a thermal device in Kyllo was used to conduct an unconstitutional search, Ogie’s close sniffing of Darleen detected information that could have otherwise easily been hidden. Thus, it doesn’t seem unreasonable to say that a dog works in a similar way as a thermal device would; it picks up tiny waves in the air.
There are indeed many instances where a canine-sniff is not a search. See, e.g., Bronstein, 2 Cir. at 521. In reaching that conclusion, however, these cases frequently deal with advanced dogs who cannot detect many drugs, and any errors would likely be in favor of the suspect. While it is true that in a canine sniff, the handler might only discover the presence or absence of contraband from the dog – not the specific contents – such considerations are unsupported in this particular case. Just like the dog in Horton, Ogie was trained to detect a wide array of substances including anything that, like the bottle of perfume in Sandra Sanchez’s purse, contains alcohol or prescription drugs and even traces residue of marijuana. The handlers, therefore, obtain information about innocent possessions as well as prohibited ones. See T.L.O., 469 U.S. at 339 (holding that schoolchildren have a legitimate expectation of privacy in non contraband items that they carry to school).
A “search” infringes a socially reasonable expectation of privacy United States v. Jacobsen (1984). Although the Supreme Court has previously held that canine sniffs are not searches (because they are not overly invasive and because they only reveal the absence or presence of contraband), that was only for vehicles and unattended property. More recently, in Illinois v. Caballes (2004), the Court ruled differently. It found that a dog-sniff of a home is a search under the Fourth Amendment. (But this was more so because of the right the property (no trespass), not so much the difference in privacy between a home and a person (?) Nonetheless, a dog-sniff of a person has long been recognized by the Court as distinguishable from a dog-sniff of property (See Katz v. United States (1967)). Numerous cases achieve different outcomes on the issue of whether non-contact close proximity dog- sniffs of a person is a search
The issue presented in U.S. v. Place was whether “the warrantless seizure of luggage violated [his] Fourth Amendment rights.” 462 U.S. at 696. In parsing this seizure question, Justice O’Connor nonetheless claimed that a canine sniff is not a search, but an investigative procedure. Id. at 699. She declared that canine sniffs ought to be treated as “sui generis,” (as a class of their own) because they are distinctly “limited both in the manner…and in the content of the information revealed…” Id.However, since Place, the Court revisited the issue of whether a canine sniff is a search, generally adopting Justice O’Connor’s tale of two cities that perhaps a canine sniff of an object has certain limits, but it can nonetheless give rise to a search. See Indianapolis v. Edmonds, 531 U.S. 32 (2000). Fleshing out Place more deeply, the Court took on an “emanations” approach, asserting that when something emanates from an object (a car, a purse, a house), it is no longer private property and so investigating it does not establish a search. Id.
Under this “plain view” analysis, a dog is merely an enhancement of police officers’ own senses. If an officer is at his station, and notices the scent of marijuana, then no search has yet occurred; the scent emanating from the object or person is considered already exposed to the public, and therefore, unprotected. Katz, 389 U.S. at 351. From this, some courts have concluded that a dog sniff merely “enhances” the senses of the police officer in the same way that a flashlight enhances the officer’s sight. Horton v. Goose Creek Ind. School Dist, 677 F.2d 471 (5th Cir. 1982).
In Katz, police used a microphone attached to a telephone booth to eavesdrop on the defendant disclosing illegal activities; while there was no dispute that the defendant was breaking the law, the Court honed in on his expectation of privacy: “….it violate[s] the privacy upon which he justifiably relied while using the telephone booth and thus, a police looking would likely constitute as a search.” 389 U.S. at 347.
Reasonableness:
- The District Court Properly Held That Defendants Had Reasonable Suspicion To Search Students
Umbrella
The search of Darleen was constitutional because it was reasonable. The defining characteristic of the Fourth Amendment is reasonableness. Brigham City, Utah v. Stuart, 547 U.S. 403 (2006). Reasonableness is determined by the context in which the search takes place. New Jersey v. T.L.O., 469 U.S. 325, 337 (1985).The reasonableness of a search “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Vernonia Sch. Dist. No. 47J v. Acton (1995). In the public school setting, the constitutionality of a search is measured “under all the circumstances.” T.L.O., 469 U.S. at 341. In doing so, a court will consider the totality of the circumstances. United States v. Arvizu, 534 U.S. 266 (2002). This totality of circumstances equally applies to the context of schoolchildren who, “ . . . do not shed their constitutional rights when they enter the schoolhouse, but where the Fourth Amendment rights “ . . . are different in public schools than elsewhere; the “reasonableness” inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.’” Earls, 536 U.S. at 829-30.
The Supreme Court has devised a three-part balancing test to determine “reasonableness” in the public school setting: (1) the nature of the privacy interest of the search; (2) the extent of the intrusion; and (3) the extent of the governmental concern at issue in combination to the efficacy of the means used for addressing that concern. Acton, 515 U.S. at 654-66. Applying this balancing test, it is clear that any search of students’ belongings at Hawthorne was reasonable and lawful under the Fourth Amendment.
With respect to the first factor, the low privacy interest of the dog-sniff weighs in favor of the Hawthorne school because public school studentshave a lesser expectation of privacy than members of the general population. Since TLO, cases have consistently confirmed this diminished expectation of privacy in a public school setting. See, e.g., Morse v. Frederick, 551 U.S. 393, 396-97 (2007); Chandler v. Miller, 520 U.S. 305, 316 (1997); Earls, 536 U.S. at 830; Doe ex rel. Doe v. Little Rock Sch. Dist., 380 F.3d 349, 353 (8th Cir. 2004), citing Vernonia, 515 U.S. at 665 (“Students in public schools do indeed have lesser expectations of privacy than people generally have in public situations, due in large part to the government’s responsibilities ‘as guardian and tutor of children entrusted to its care.”). This, however, is not to say a student’s expectation of privacy is non-existent. See Doe ex rel. Doe v. Little Rock Sch. Dist.,380 F.3d 349, 353 (8th Cir. 2004), but merely that a student’s diminished expectation of privacy weighs in favor of a finding of reasonableness of this particular dog-sniff.
Like in Vernonia, where students spend virtually all of the school hours in close proximity with each other in the classroom, there is a familiarity among students and teachers, all of whom get to know each other quite well. Of necessity, teachers develop a close association with, and authority over, their student that is unparalleled except perhaps in the relationship between parent and child. This privacy interest is such that society prepared to recognize as legitimate. Students cannot reasonably expect to ring contraband/drugs to school, and drug-detecting dogs are capable of detecting nothing but the scent of illegal drugs. Like in Vernonia and Earls, the search’s only task is to detect contraband or not. Although the results are more “public” than in Vernonia, and more compulsory (cannot opt-out) than in Earls) that is not enough to relieve Plaintiff because: 1. The students already exposed their belongings and 2. The parents were notified about the expanded dog-sniff procedure, so it’s not like the students or parents didn’t expect it – they knew it would happen
Vernonia Factor 2 weighs in favor of finding the search reasonable because the search of Darleen was minimally intrusive. A dog-sniff is minimally intrusive, especially in comparison to bodily fluids and metal detectors. No investigative procedure “is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure” as a canine sniff. Place, 462 U.S. at 707. In HTLSD made similar efforts to Vernonia and Earls to minimize intrusiveness (trained in a certain way). the discovery of contraband, while possibly embarrassing and distressing (especially when false), there are no consequences with law enforcement, minimizing intrusiveness. The only thing that happens is that school officials work with the students, highlighting that the policy is aimed at curbing the drug problem in a minimally-intrusive way. Additionally, there were no criminal prosecutions referred by the Sheriff’s Department as a result of the practice, which is indicative of a minimally intrusive search. See Earls, 536 U.S. at 833. Last, although Darleen felt momentarily embarrassed, she was not exposed to any consequences from classmates while the sniff of her personal belongings was taking place. This served to minimize the character of the intrusion. See In re D.H., 306 S.W.3d 955, 959 (Tex. Ct. App. 2010). The intrusion was minimal, weighing in favor of a finding of reasonableness.
Vernonia Factor 3 weighs in favor of reasonableness because there was a high state interest to conduct the search for drugs with dog-sniffs. The Supreme Court has concluded that a school’s interest in deterring drug usage in students is an “important–indeed, perhaps compelling . . . .” objective.” Acton, 515 U.S. at 661. The Court further emphasized this need, saying “School years are the time when the physical, psychological, and addictive effects of drugs are most severe.” Acton, 515 U.S. at 661. In regards to the immediacy of this drug concern, the Supreme Court “has not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing.” Earls, 536 U.S. at 835. It would not be logical or effective to require a school district to wait for a big percentage of its students to use drugs before it was permitted to implement a drug testing program aimed at deterring drug use.
HLSTD put forth compelling evidence demonstrating a documented need for deterring drug use and protecting its students. The school’s policy is in response to a documented alarming drug problem on its campuses. This is reflected in the statistics and parental concern. The sniff program was effective in closing a dangerous loophole of students hiding contraband in their pockets. Even though the program is not perfect, on balance, the dog-sniff program reasonably designed to combat a significant and compelling problem. The students parents,
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