690 F.2d 470 (5th Cir. 1982), 81-2215, Horton v. Goose Creek Independent School Dist.

Docket Nº:81-2215.
Citation:690 F.2d 470
Party Name:Robert HORTON, as next friend of Robby Horton, Heather Horton and Sandra Sanchez, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Appellants, v. GOOSE CREEK INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.
Case Date:November 01, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 470

690 F.2d 470 (5th Cir. 1982)

Robert HORTON, as next friend of Robby Horton, Heather

Horton and Sandra Sanchez, on their own behalf and

on behalf of all others similarly

situated, Plaintiffs-Appellants,

v.

GOOSE CREEK INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.

No. 81-2215.

United States Court of Appeals, Fifth Circuit

November 1, 1982

Page 471

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Page 473

Arthur Val Perkins, Stefan Presser, Houston, Tex., for plaintiffs-appellants.

Richard A. Peebles, Baytown, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

ON PETITION FOR REHEARING

Before WISDOM, RANDALL and TATE, Circuit Judges.

PER CURIAM:

The defendant's petition for panel rehearing is granted, the opinion originally published (677 F.2d 471) in this case is withdrawn, and the following opinion is substituted therefor.

This case presents a question of first impression in this circuit: as a matter of constitutional law, can a school district, acting in good faith in an effort to deal with a serious drug and alcohol problem, subject students, their lockers, and their automobiles to the exploratory sniffing of dogs trained to detect certain contraband? We must consider the special circumstances peculiar to the public school environment, the duty of school officials to protect the minors in their care, the growing problem of drug and alcohol abuse in the schools, the students' interest in the integrity of their persons and effects, and the importance of demonstrating to the young that constitutional guarantees are not only lofty theories but do in practice control our government. Bearing in mind all these considerations, we hold that the dogs' sniffing of cars and lockers does not constitute a search within the purview of the fourth amendment. We hold further that the dogs' sniffing of the childrens' persons does constitute a search within the purview of the fourth amendment, and that in a school setting, individualized reasonable suspicion is required in order for the sniffing to be constitutional.

I. PROCEDURAL AND FACTUAL BACKGROUND.

The named plaintiffs, Robby Horton, Heather Horton, and Sandra Sanchez, brought this action by their next friend,

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Robert Horton, seeking to represent all students enrolled in the Goose Creek Consolidated Independent School District (GCISD) in a challenge under 42 U.S.C. § 1983 to the defendant school district's canine drug detection program.

The defendant, GCISD, adopted the challenged program in response to a growing drug and alcohol abuse problem in the schools. It contracted with a security services firm, Securities Associates International, Inc. (SAI), that provides dogs (generally Doberman pinschers and German shepherds) trained to alert their handlers to the presence of any one of approximately sixty different substances, including alcohol and drugs, both over-the-counter and controlled. The defendant conducted assemblies in the elementary schools to acquaint the children with the dogs and informed students in the junior and senior high schools of the program. On a random and unannounced basis, the dogs are taken to the various schools in the district, where they sniff students' lockers and automobiles. They also go into the classrooms, on leashes, to sniff the students themselves. During their "playtime" at the schools, the dogs are sometimes taken off their leashes. When a dog alerts the handler to the odor of an illicit substance on a student's person, after the sweep of the class is completed and the dog and handler have departed, a school official discreetly asks the student to leave the class and go to the administrator's office, where he is subjected to a search of pockets, purse, and outer garments. 1 When a dog alerts his handler to an automobile, the student driver is asked to open the doors and the trunk. If he refuses, the school notifies the parents. When a dog alerts his handler to a locker, the school searches the locker without the consent of the student to whom it is assigned. If the student is found to possess substances that violate school policy, he may agree to seek outside counseling; otherwise the administrator may recommend to the superintendent that the student be suspended. Second-time violators do not have the option of counseling.

The named plaintiffs were all subjected to the sniffing of the canine drug detectors. Two of them, Robby Horton and Sandra Sanchez, triggered alerts. School officials questioned Sandra, took her purse, and searched it without her consent. They found a small bottle of perfume, which they returned to her. Robby was asked to empty his pockets, which he did. When nothing incriminating was found, the school officials searched his socks and lower pants legs but again found no contraband. 2

The plaintiffs brought this action, alleging a violation of the fourth amendment prohibition of unreasonable searches and seizures and a violation of the fourteenth amendment prohibition of deprivations of liberty and property without due process. On a motion for class certification and cross-motions for summary judgment, the district court denied certification and held that the sniffing, although it is a search, is not unreasonable. Further, it held that reasonable cause is the standard for searches of students and their property by school officials acting in loco parentis, and the alert of the dogs provides reasonable cause for searches of lockers and cars as well as for searches of the pockets, purses, and outer garments of students. Finally, the district court held that the program does not violate the due process clause, because it subjects the students to minimal intrusion, humiliation, and fear. The plaintiffs appeal both on the merits and on the question of class certification.

II. THE CONSTITUTIONALITY OF THE DOG SNIFFING.

Although the specific problem presented in this case is new to the Fifth Circuit, a district court in this circuit and appellate courts for the Seventh and Tenth Circuits have decided similar cases. In the most recent case, Zamora v. Pomeroy, 639 F.2d

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662 (10th Cir. 1981), the Tenth Circuit upheld the use of dogs in exploratory sniffing of lockers. Although the focus of the opinion was the due process problem presented by the school's disciplinary action, the court did consider the fourth amendment issues. Noting that the school gave notice at the beginning of each school year that lockers were subject to being opened and that the school and the student possessed the locker jointly, the court held that the school administrator's duty to maintain an educational atmosphere in the school necessitated a reasonable right of inspection, even though the inspection might infringe a student's rights under the fourth amendment. Id. at 670.

The Seventh Circuit reached the same result on facts similar to those presented by the GCISD program. In Doe v. Renfrow, 475 F.Supp. 1012 (N.D.Ind.1979), op. adopted on this issue and rev'd on another issue, 631 F.2d 91 (7th Cir.) (per curiam), cert. denied, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981), the school, with the assistance of the police, used dogs for general, exploratory sniffing of students. The court held that the sniff of a dog is not a search, particularly in view of the diminished expectations of privacy inherent in a public school, the school's right and duty in loco parentis to supervise students and maintain an educationally sound environment, and the minimal intrusion involved.

A district court in our own circuit, on the other hand, reached the opposite result, explicitly rejecting Doe v. Renfrow. Jones v. Latexo Independent School District, 499 F.Supp. 223, 236 (E.D.Tex.1980). The Latexo Independent School District used dogs to sniff both students and automobiles. The court granted a preliminary injunction against the sniffing. In its view, the school environment was a factor to be considered, but it did not automatically outweigh all other factors. The absence of individualized suspicion, the use of large animals trained to attack, the detection of odors outside the range of the human sense of smell, and the intrusiveness of a search of the students' persons combined to convince the judge that the sniffing of the students was not reasonable. Since the students had no access to their cars during the school day, the school's interest in the sniffing of cars was minimal, and the court concluded that the sniffing of the cars was also unreasonable. The result in Jones appears to be that favored by the commentators, who have been unanimous in their criticism of Doe v. Renfrow. See, e.g., Gardner, Sniffing for Drugs in the Classroom-Perspectives on Fourth Amendment Scope, 74 Nw.U.L.Rev. 803 (1980); Note, The Constitutionality of Canine Searches in the Classroom, 71 J.Crim.L. & Criminology 39 (1980); Comment, Search and Seizure in Public Schools: Are Our Children's Rights Going to the Dogs? 24 St. Louis U.L.J. 119, 131-33 (1979); see also Doe v. Renfrow, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981) (Brennan, J., dissenting from denial of certiorari); Doe v. Renfrow, 631 F.2d 91, 93 (7th Cir. 1980) (Swygert, J., dissenting from denial of rehearing). It is against the background of this split in authority that we undertake our own analysis of the question.

The problem presented in this case is the convergence of two troubling questions. First, is the sniff of a drug-detecting dog a "search" within the purview of the fourth amendment? Second, to what extent does the fourth amendment protect students against searches by school administrators seeking to maintain a safe environment conducive to education? On each question, we find an...

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