Jennings v. Joshua Independent School Dist.

• Decision Date: 19 June 1989
• Docket Number: No. 88-1089.,88-1089.
• Citation: 877 F.2d 313
• Parties: William F. JENNINGS, Individually and as Next Friend of Naomi Jennings, a Minor, Plaintiff-Appellant, and Don Gladden, Appellant, v. JOSHUA INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees, Francesca Raines and Royce Ingersoll, etc., Defendants Third-Party Plaintiffs-Appellees, Security Associates International, Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

877 F.2d 313

William F. JENNINGS, Individually and as Next Friend of Naomi Jennings, a Minor, Plaintiff-Appellant, and Don Gladden, Appellant, v. JOSHUA INDEPENDENT SCHOOL DISTRICT, et al., Defendants-Appellees, Francesca Raines and Royce Ingersoll, etc., Defendants Third-Party Plaintiffs-Appellees, Security Associates International, Third-Party Defendants-Appellees.

No. 88-1089.

United States Court of Appeals, Fifth Circuit.

April 12, 1989.

As Amended on Denial of Rehearing and Rehearing June 19, 1989.

Gladden, Fort Worth, Tex., for plaintiff-appellant.

Lawrence Ackels, Jr., and Gregory K. Ackels, Ackels, Ackels & Ackels, Dallas, Tex., for Officer David Stevens.

Hollye C. Fisk, and Elizabeth L. Phifer, Fisk & Fielder, Dallas, Tex., for Francesca Raines, et al.

David Owen, Owen, Wilson & Carr, Fort Worth, Tex., for Joshua Independent School Dist., et al.

Mark M. Donheiser, Dallas, Tex., for Security Assoc.

Before WISDOM, GARWOOD and JOLLY, Circuit Judges.

As Amended on Denial of Rehearing and Rehearing En Banc June 19, 1989.

E. GRADY JOLLY, Circuit Judge:

This case is a civil rights action brought under 42 U.S.C. § 1983, against school officials, a policeman, sniffer-dog handlers and other defendants. William Jennings, father of Naomi Jennings, alleged that the defendants violated his and his daughter's fourth amendment rights by conducting a search of his automobile in the Joshua High School parking lot pursuant to a search warrant. Jennings appeals from a judgment of the district court based on a directed verdict for all defendants except Officer David Stevens, who won before the jury. Both Jennings and his attorney, Don Gladden, also appeal from that portion of the judgment imposing sanctions jointly and severally against each of them under Rule 11 of the Federal Rules of Civil Procedure. Because there was no basis in fact or law to hold any of the defendants, except the police officer, liable for violating the defendants' fourth amendment rights, and because the police officer was entitled to immunity, we affirm.

I

At the time the essential facts of this case occurred, the Joshua Independent School District maintained a program intended to educate students of the dangers of drugs, alcohol and weapons, and to deter students from bringing any of those items to school. Defendant Security Associates International (S.A.I.) contracted to provide the school with a sniffer-dog service to detect narcotics, marijuana, alcohol, firearms, ammunition and pyrotechnics on campus. Periodically, as a deterrent, the dogs would be walked through the school parking lot. If a dog was alerted by a scent from a car, the school's policy was to contact the student responsible for the vehicle. If the student refused to consent to a search of the car, school authorities would contact the student's parent. If the parent refused consent, then the authorities would contact law enforcement officials. The hope was that these inspections would discourage students from bringing to school substances and objects banned under school policy.

On March 29, 1985, a trained sniffer dog named King was alerted by an unattended car in the Joshua High School parking lot. William Jennings' daughter Naomi had driven the car to school that day. Naomi Jennings was called out of school and asked to consent to a search of the vehicle. She refused because her father, who had had various jobs as a federal law enforcement official investigating embezzlement and fraud in the United States postal system, had instructed her to refuse consent and call him if a dog ever was alerted by the car. William Jennings had learned of the school sniffer-dog program in January of 1985 when Naomi described it to him, and Jennings had then expressed his disapproval of the program on fourth amendment grounds.

Jennings was notified that a sniffer dog had reacted to his car, and he drove to the Joshua High School parking lot, where he met his daughter, his wife, the dog handler, the principal and the vice principal of the high school. After he also refused consent, the school officials contacted the police, and police officer Stevens arrived. Jennings was informed that the situation was going to be a police matter, and Officer Stevens proceeded to conduct an independent investigation. He asked defendant Francesca Raines, the dog handler, for information on the dog's reliability and training, and was given a demonstration of how the dog worked. He was also shown reports of what had been found in other cars that had alerted the dog that day. Stevens telephoned the county attorney for advice on whether there was sufficient probable cause to justify seeking a search warrant and then drove Raines to the county attorney's office, in case the county attorney wished to ask her any questions. Jennings, who was present at the scene throughout the investigation, then waited in the school parking lot with the vice principal of the high school for Officer Stevens to return.

The county attorney, after consulting with Raines and Stevens, concluded that there was sufficient evidence to apply for a search warrant, and directed the preparation of an affidavit. The county judge determined that probable cause existed and issued a search warrant. Officer Stevens and Raines returned to the school parking lot where Stevens executed the search warrant in front of Jennings. That search revealed no object or substance prohibited by law or school policy.

On August 29, 1985, Jennings brought this civil rights suit under 42 U.S.C. § 1983 on behalf of himself and his minor daughter, Naomi, against Joshua Independent School District ("J.I.S.D."), Greenawalt (Superintendent of Schools), Loftin, (vice principal of the high school), Officer Stevens (employed by the City of Joshua), the City of Joshua itself, and Francesca Raines and Royce Ingersoll, d/b/a The Institute of Criminal and Civil Investigations (the dog handlers). S.A.I., who provided the sniffer-dog service to the high school, was later added as a defendant, and Jennings later withdrew his claim against the city as a defendant.

On November 7, 1986 the district court denied the motions for summary judgment of three school defendants and the dog handlers because no evidence had been submitted relating to the dog's reliability. On January 28, 1987 the district court denied S.A.I.'s and Stevens' motions for summary judgment.

A five-day trial began on October 5, 1987. At the close of the plaintiffs' case the court directed a verdict in favor of the school defendants, Ingersoll and Raines, and S.A.I. The jury returned a verdict for Stevens.

On January 5, 1988 the district court entered judgment finding Stevens not liable pursuant to the jury's verdict, directing a verdict for all the remaining defendants, awarding attorneys' fees to all defendants except Stevens, and imposing sanctions against Jennings and his attorney pursuant to Rule 11. Jennings filed a timely notice of appeal.

II

A.

Jennings' first claim on appeal is that the district court erred in failing to rule that no probable cause existed for the search of his car, or, alternatively, erred in failing to submit that issue to the jury.

As to defendants Ingersoll, Raines, J.I.S.D., Greenawalt, Loftin and S.A.I., there was no need for the district judge to make a determination of the existence or nonexistence of probable cause. Whether probable cause in fact existed is irrelevant to the directed verdict granted in their favor. The use of trained dogs to sniff automobiles parked on public parking lots does not constitute a search within the meaning of the fourth amendment. Horton v. Goose Creek Independent School District, 690 F.2d 470, 477 (5th Cir.1982), cert. denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983). Once William Jennings declined to allow a search of his car, these defendants withdrew, except as witnesses, and turned the matter completely over to law enforcement officials. They therefore cannot be liable for any constitutional violation that followed.

To be liable under section 1983 a defendant must have been personally implicated in the wilful act causing the deprivation of a constitutional right, or must have had or been chargeable with knowledge that his subordinates were causing a constitutional deprivation. Love v. King, 784 F.2d 708, 711 (5th Cir.1986). Though the school officials contacted the police, their actions cannot be said to have been the legal cause of any subsequent deprivation of the Jennings' fourth amendment rights. Officer Stevens made an independent investigation when he reached the school parking lot; the county attorney, after review, authorized the application for the warrant; and the judge then made his own independent determination of probable cause based on the information Officer Stevens had gathered and on the affidavit drawn up by the county attorney. Nor may dog handler Raines or any of the other defendants be said to have been personally implicated in or jointly responsible for Stevens' actions merely because he or she furnished information to Stevens in the course of his investigation, see Hernandez v. Schwegmann Bros. Giant Supermarkets, Inc., 673 F.2d 771, 772 (5th Cir.1982); White v. Scrivner Corp., 594 F.2d 140, 143-44 (5th Cir.1979). Further, Officer Stevens was not a "subordinate" of any of the named defendants, because none had any duty or authority to control his actions, and none of the defendants had any knowledge that Officer Stevens might act unlawfully in pursuing and executing a search warrant on the Jennings' car.

As the record makes plain, none of these defendants acted outside the scope of his or her authority in conducting, directing or allowing the sniff search of the Jennings' car, or acted jointly with the police to cause the deprivation of the Jennings' constitutional rights. Even if the district court had submitted the issue of probable cause to the jury with respect to these defendants, and...