©2010 Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute (LLRMI.COM)  As public school officials attempt to combat the problem of illegal drugs at school, the use of police drug sniffing canines is becoming more prevalent.  It is well established that canine sniffs of lockers and parked cars do not constitute a “search” under the Fourth Amendment.i However, in some situations, the facts leading up to the use of a canine may implicate the Fourth Amendment by constituting a seizure of a person or property prior to the use of the canine.

On March 5, 2010, the Court of Appeals of Texas (Austin) recently decided In the Matter of D.H.ii, which dealt with such an issue.  The facts of D.H. are as follows:

In October 2006, officers from the Austin Police Department arrived at Reagan High School to conduct a canine search of the school. D.H., who was sixteen at the time, was a student at the school. Assistant Principal Mike Perez led the officers through the school, allowing the dog to sniff several classrooms on each floor of each building. For every inspection, Perez entered the classroom and informed the teacher of the sweep. The students were then instructed to leave their property in the classroom and wait in the hall, and the police entered and allowed the dog to sniff the items left in the room. The students were not allowed to refuse the instructions or to take their items with them. When the officers searched D.H.’s classroom, the dog reacted to her backpack. The officers called D.H. into the classroom, read D.H. her rights, and searched her bag, where they found a small bag of mariJuana.iii

D.H. filed a motion to suppress with the trial court alleging that her bag was seized without reasonable suspicion when she was required to leave it in the class while the canine conducted a sniff of all bags in the room.  The trial court denied the motion to suppress.

D.H. appealed and argued (1) her backpack was seized for Fourth Amendment purposes when she was required to leave it in the class and (2) the seizure was not supported by reasonable suspicion since neither the officers nor school official had a reason to believe that she was engaged in a school rule or law violation.iv

The Court of Appeals of Texas (Austin) first examined some general rules regarding searches and seizures in schools.  The rules are as follows:

  • Although probable cause and a warrant are generally required before law enforcement may conduct a search, a search unsupported by probable cause may be reasonable ‘when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.v [internal quotations omitted]
  • Although students in public schools do not shed their constitutional rights . . . at the schoolhouse gate, their constitutional rights are not automatically coextensive with the rights of adults in other settings, and must be considered in view of the school environment.vi [internal quotations omitted]
  • The public-school context requires a relaxed standard of reasonableness because insisting on “the warrant requirement would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed,’ and ‘strict adherence to the requirement that searches be based on probable cause’ would undercut ‘the substantial need of teachers and administrators for freedom to maintain order in the schools.vii[internal quotations omitted]
  • In determining whether a search or seizure of a student or her property conducted was reasonable, we first consider the nature of the implicated privacy interest, then consider the character of the intrusion, and finally consider the nature and immediacy of the government’s concerns and the efficacy of the [school’s action] in meeting them.viii [emphasis added]
  • [T]he Supreme Court has expressly refused to impose a requirement of “individualized reasonable suspicion of wrongdoing” on schools’ attempts to prevent student drug use.ix

The court of appeals then declined to decide whether or not D.H.’s bag was seized within the meaning of the Fourth Amendment; rather, the court stated that they would assume the seizure occurred (since a seizure occurs if there is meaningful interference with a person’s possessory interest in property) and decide the case based upon whether such a seizure of D.H’s bag was reasonable in the public school setting.

Thus, the issue before the court was whether the seizure of D.H.’s bag by requiring her to leave it in her class while a conducted conduct a sniff of all bags in the class was reasonable under the Fourth Amendment as applied in the school setting.

The court then applied the facts of D.H.’s case to the rules above.  The court stated that to determine whether the seizure of the bag was reasonable, they would use the three part test from the rule above (see fourth bullet point) and examine (1) the nature of the implicated privacy interest, (2) the character of the intrusion, and (3) the nature of the schools concerns and the efficacy of the seizure in addressing those concerns (drugs).x

Thus, the court first examined the privacy interest that was frustrated by the seizure of D.H.’s backpack.  In light of the fact that students have a somewhat lessened expectation of privacy at school and are sometimes subjected to greater control than adults in a public environment, the court stated

considering that D.H.’s backpack was not opened, nor were its contents examined, until after the dog alerted on it, and bearing in mind the control and supervision that school authorities must properly exercise in their roles as guardians and tutors of their students, we hold that restricting D.H.’s ability to take her backpack with her implicated a relatively minor privacy interest.xi [emphasis added]

Second, the court of appeals considered the nature or type of infringement of D.H.’s privacy rights.  The court noted that the students were removed from the class and only the police officers and the assistant principal were in the class at the time of the canine sniff.  As such, there was no likelihood that D.H.’s backpack was likely to be stolen and there were no other students around that may embarrass D.H.  The court then stated

Given the method employed in conducting the canine inspection and the minimally intrusive nature of the inspection, we hold that the invasion of D.H.’s privacy was not significant.xii[emphasis added]

Last, the court of appeals considered the nature and immediacy of the government’s (schools) concerns and the efficacy of the seizure of D.H.’s bag in meeting those concerns.  The court noted that, in previous cases, the United States Supreme Court has stated that there is an important or perhaps compelling government interest in preventing drug use by schoolchildren.xiii  The assistant principal testified that he knew there was a drug problem at the school because school officials have found marijuana being sold at school as well as children returning from lunch under the influence of drugs.  The assistant principal also said that drugs at school are a serious safety issue due to belligerent behavior as well as dangerous physical reactions.  He also said that the school officials were always on the lookout for drug use.  Additionally, students and parents sign off on the student handbook which contains the school policy prohibiting drugs at school.  The court then stated

Considering the low level of intrusion on D.H.’s limited privacy rights and the evidence about the drug problem at Reagan High, we hold that the seizure effectively addressed the problem of student drug use and served the important governmental interest in protecting the students’ safety and health.xiv [emphasis added]

In light of analysis of the three part test to determine if the seizure of the bag was reasonable, and in light of other court precedent from other jurisdictionsxv, the court held that the brief seizure of D.H.’s bag by requiring her to leave it in her class as a canine conducted a sniff, was reasonable under the Fourth Amendment in a public school setting.


NOTE:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.


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i Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir. 1982); see also United States v. Place, 462 U.S. 696 (1983); Illinois v. Caballes, 543 U.S. 405 (2005)

ii 306 S.W. 3d 955, 2010 Tex. App. LEXIS 1610

iii Id. at 957

iv Id.

v Id. at 957-958

vi Id. (quoting Morse v. Frederick, 551 U.S. 393, 396-97, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007) (quoting Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988)).

vii Id. (quoting Acton, 515 U.S. at 653 (quoting T.L.O., 469 U.S. at 340-41); see Earls, 536 U.S. at 828-29; see also Safford Unified Sch. Dist. # 1 v. Redding, 129 S.Ct. 2633, 2639, 174 L. Ed. 2d 354 (2009)

viii Id. (citing Earls, 536 U.S. at 830, 832, 834)

ix Id. (citing Earls, 536 U.S. at 837)

x Id. at 959

xi Id.

xii Id.

xiii Id. (citing Acton, 515 U.S. at 661)

xiv Id. at 960

xv Id. at 960 fn3 (See also Louisiana v. Barrett, 683 So.2d 331, 338 (La. Ct. App. 1996) (school required students to empty pockets onto desk and leave classroom to allow drug dog to sniff belongings; “Taking into account the decreased expectation of privacy defendant had as a student, the relative unobtrusiveness of the search, and the severity of the need met by the search, we conclude the type of search conducted in this case (wherein defendant was asked to empty his pockets and leave the room) is reasonable and hence constitutional.”); Smith v. Norfolk City Sch. Bd., 46 Va. Cir. 238, 244-45, 261 (Va. Cir. Ct. 1998) (students were required to leave belongings in classroom to be sniffed by drug dog; “Balancing Condon’s lessened privacy interests and the minimal intrusion upon them against the strong governmental concerns with drugs and guns, this Court concludes that Condon’s rights were not violated by the brief seizure of his belongings.”).

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