Public school officials are continually developing new strategies to combat drug use and possession in their schools, and often these officials take action or implement policies that implicate the Fourth Amendment. Recently, the Eighth Circuit Court of Appeals decided C.M v. Springfield Public Schools et al., [i] which involved a police canine sniff of student’s belongings in a public high school. The facts of the case are as follows:
C.M. was a freshman at the district’s Central High School during the 2009 to 2010 school year. In April 2010 two deputies from the Greene County sheriff’s department arrived at the school with two drug dogs to conduct a brief survey of randomly selected areas in the building. The survey was conducted in accordance with school police services’s standard operating procedure number 3.4.1. On the day of the drug detection activity, C.M. was informed that his science classroom had been chosen to be sniffed by a drug dog. The dog was held by a deputy sheriff thirty to fifty feet from C.M.’s classroom while a school police officer instructed the students and teacher to leave the room. All backpacks, purses, and other personal items were to be left behind. C.M. left his backpack and books in the room and went into the hallway where he could no longer see his belongings. He alleges that his backpack was fully zipped when he left the room.
Once the room was cleared of students, a deputy sheriff took the drug dog into C.M.’s classroom. Video footage shows that the deputy sheriff and drug dog left the classroom after approximately five minutes. During that time the drug dog did not alert to anything. Although district personnel and the deputy sheriff who handled the drug dog testified that no student possessions were searched in this classroom, C.M. stated that after he went back inside he “felt like the pockets [of his backpack] had been unzipped and stuff.”
The director of the school police services department testified that he had contacted the Greene County Sheriff’s Department in October 2009 to request that drug detection dogs visit each of the district’s high schools during the 2009 to 2010 school year. Sheriff department policy 5-50-5 authorizes the use of canines for the “[r]andom exploratory sniffing of luggage, packages or other inanimate objects . . . in public facilities.” After sheriff Arnott received the initial request from the director, he assigned a captain to coordinate the use of drug dogs in the district high schools. That was sheriff Arnott’s sole contact with the drug detection procedure, and he was not present at C.M.’s school during the visit of the drug dogs in April 2010.
The drug dog visit to C.M.’s high school was done in accordance with Board of Education policy JFG and school police services’s standard operating procedure 3.4.1. Policy JFG was enacted to “balance each student’s right to privacy” with “the need to maintain an appropriate learning environment.” It permits student property to be “screened in conjunction with law enforcement by using animals trained to locate and/or detect weapons and prohibited drugs.” The school police services’s procedure allows drug dogs to be used at the district’s secondary school buildings “to protect the safety and health of the [d]istrict’s faculty, staff and students.” It permits dogs to sniff student lockers, desks, backpacks, and similar items when they are not in the possession of students. The procedure states that “once a drug detection dog has completed sniffing an area, the dog handler and drug detection dog will retire from the area.” The director of school police services has further clarified that a student’s possessions will only be searched if a drug dog has twice alerted on the same property.
District personnel created procedures for drug detection surveys like the April 2010 visit to C.M.’s classroom in order to address a known drug problem in the district. C.M. testified that he knew a lot of high school students were using drugs. District records show that the number of drug incidents in the district from 2000 to 2011 ranged from 89 to 205 per year. A school police officer from C.M.’s high school testified that he “frequently received reports from students, parents, and teachers about the use of illegal and prescription drugs in the school.” He handled drug related incidents on average three or more times per week, leading him to believe that “there was and is a drug problem” at the high school. [ii]
C.M. filed suit and alleged, among other things, that the school district and the sheriff violated his Fourth Amendmentrights by seizing his bag absent of reasonable suspicion of criminal activity. The defendant school district and sheriff filed a motion for summary judgment which was granted by the district court, which concluded that C.M.’s bag was not “seized” under the Fourth Amendment under the circumstances of his case. C.M. appealed to the Eighth Circuit Court of Appeals.
One of the issues before the court of appeals was whether C.M.’s bag was seized when he was ordered to leave the class for five minutes while the canine conducted a sniff of the bags left in the classroom and if so, whether the seizure was reasonable under the Fourth Amendment.
The Eighth Circuit first examined legal principal relevant to disposition of this case. It stated:
A student’s privacy interest “is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety.” Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830, 122 S. Ct. 2559, 153 L. Ed. 2d 735 (2002). Students do retain Fourth Amendment rights at school, T.L.O., 469 U.S. at 338, but those rights “are different in public schools than elsewhere,” Acton, 515 U.S. at 656. That is because schools have a “legitimate need to maintain an environment in which learning can take place.” T.L.O., 469 U.S. at 340. Thus, a reasonableness inquiry must consider schools’ “custodial and tutelary responsibility for children” and the fact that students have a “lesser expectation of privacy than members of the population generally.” Acton, 515 U.S. at 656-57 (citation omitted). [iii]
Thus, the Eighth Circuit noted that they must balance C.M.’s Fourth Amendment rights against the legitimate school interest of preventing drug use and possession at school. Relevant factors to consider are (1) the nature of the privacy interest allegedly violated, (2) the nature of the intrusion into that privacy interest, and (3) the nature and immediacy of the government’s concerns and the manner in which those concerns were addressed.
The court then looked at facts relevant to this inquiry. First, the court noted that in school, C.M. has a “lesser expectation of privacy” than the general public. [iv] Thus, C.M. had a lesser privacy interest while at school than a person does in other public places.
Second, it was noted that C.M. was only separated from his bag for five minutes, which was a short period of time, during the canine sniff. While C.M. had alleged that someone entered his bag, the officers stated they did not, and there were no other witnesses, as such, it was not alleged on appeal. It is important to note that under Doe v. Little Rock School District [v], it likely would have been a Fourth Amendment violation if officers would have searched C.M.’s bag in the room absent a positive alert from the canine. However, based upon the lack of evidence that such a search occurred, it was not part of the appeal. Additionally, the court found it reasonable to remove all students from the room during the sniff to protect the children from being targeted by the dog and to prevent any embarrassment to a child if the dog alerted on a bag.
Third, the court noted that a five minute separation from his bag did not amount to an unreasonable interference because during class, C.M. would not have been able freely access or move his bag about the room without permission.
Fourth, citing Little Rock School District, the court stated that:
[A] drug dog survey is “minimally intrusive, and provide[s] an effective means for adducing the requisite degree of individualized suspicion to conduct further, more intrusive searches.” The drug dog procedure at C.M.’s school was the type of minimally intrusive activity which we referenced in Little Rock. [vi]
Lastly, the court examined the nature of the government’s concern in combating drug use and possession in school. Regarding this, the court stated:
The district and its officials have shown an immediate need for a drug dog procedure because there is substantial evidence showing there was a drug problem in district buildings. The Supreme Court has repeatedly emphasized the strong government interest in preventing drug use by students. Drug problems in schools are “serious in terms of size, the kinds of drugs being used, and the consequences of that use both for our children and the rest of us.” That is because “drug use carries a variety of health risks for children, including death from overdose.” [vii] [internal citations omitted]
Thus, the court acknowledged that the school was addressing a legitimate and serious issue when they used the canine sniff to attempt to detect drugs in the school.
In light of the above analysis, the Eighth Circuit held:
Assuming that C.M.’s belongings were seized in this case when the school police officer directed that they be left in the classroom for approximately five minutes while the drug dog survey occurred, we conclude that the seizure was part of a reasonable procedure to maintain the safety and security of students at the school. [viii]
As such, the school district and sheriff did not violate the Fourth Amendment by having students leave their bags in the classroom and exit the room for approximately five minutes while a canine conducted a free air sniff of bags and belongings left in the classroom.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] 708 F.3d 1034 (8th Cir. 2013)
[ii] Id. at 1036-1037
[iii] Id. at 1038
[iv] Id. at 1039
[v] 380 F.3d 349 (8th Cir. 2004)
[vi] 708 F.3d at 1040
[viii] Id. at 1039