Robert Horton v. Goose Creek Independent School District

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defendant's petition for panel rehearing is granted, the opinion originally published (677 F.2d 471) in this case is withdrawn, and the following opinion is substituted therefor.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

A. The Canine Sniff as a Search.

Frequent use of drug-detecting dogs by law enforcement officials has led to a great number of cases challenging the admissibility of the fruits of a canine sniff.3 From these cases, one proposition is clear and universally accepted: if the police have some basis for suspecting an individual of possessing contraband, they may, consonant with the fourth amendment, use a drug-detecting dog to sniff checked luggage,4 shipped packages,5 storage lockers,6 trailers,7 or cars.8 While the rationales of these cases are not the same, the majority view is that the sniffing of objects by a dog is not a search. See, e.g., United States v. Waltzer, 682 F.2d 370 (2d Cir. 1982); United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976); United States v. Fulero, 498 F.2d 748 (D.C.Cir.1974). But see, e.g., People v. Williams, 51 Cal.App.3d 346, 124 Cal.Rptr. 253 (1975); cf. People v. Campbell, 67 Ill.2d 308, 10 Ill.Dec. 340, 367 N.E.2d 949, cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978) (characterization as "search" is not significant; the question is whether the investigation is reasonable).9 Only the Ninth Circuit has held that the sniffing of objects is a search, though it may at times be reasonable. United States v. Beale, 674 F.2d 1327 (9th Cir. 1982); United States v. Solis, 536 F.2d 880 (9th Cir. 1976).

The decision to characterize an action as a search is in essence a conclusion about whether the fourth amendment applies at all. If an activity is not a search or seizure (assuming the activity does not violate some other constitutional or statutory provision), then the government enjoys a virtual carte blanche to do as it pleases. The activity is "excluded from judicial control and the command of reasonableness." Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 393 (1974). We must analyze the question of whether dog sniffing is a search in terms of whether the sniffing offends reasonable expectations of privacy, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and must look at the degree of intrusiveness of the challenged action to determine whether it is the type of activity that can be tolerated in a free society. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also 1 W. LaFave, Search and Seizure § 2.2(a), at 234 (1978).

We have already held that the sniffing by dogs of luggage checked in an airport, United States v. Goldstein, 635 F.2d 356 (5th Cir.), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981), and luggage checked in a bus terminal, United States v. Viera, 644 F.2d 509 (5th Cir.), cert. denied, 454 U.S. 867, 102 S.Ct. 332, 70 L.Ed.2d 169 (1981), is not a search, reasoning that "the passenger's reasonable expectation of privacy does not extend to the airspace surrounding that luggage." 635 F.2d at 361. We noted that the appellants had released their bags to the custody of the airlines, thereby relinquishing-at least temporarily-all control over them. Other circuits have emphasized the minimal humiliation entailed in dogs sniffing unattended luggage. E.g., Bronstein, supra.10

The courts have in effect adopted a doctrine of "public smell" analogous to the exclusion from fourth amendment coverage of things exposed to the public "view." Katz, supra. See also United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (implicit); United States v. Rivera, 595 F.2d 1095, 1098-99 (5th Cir. 1979) (implicit); see generally 1 W. LaFave, Search and Seizure § 2.2(a) (1978). The courts have reasoned that if a police officer, positioned in a place where he has a right to be, is conscious of an odor, say, of marijuana, no search has occurred; the aroma emanating from the property or person is considered exposed to the public "view" and, therefore, unprotected. From this proposition the courts have concluded that the sniffing of a dog is "no different,"11 or that the dog's olfactory sense merely "enhances" that of the police officer in the same way that a flashlight enhances the officer's sight.12

We find Goldstein to be controlling on the question of whether the dogs' sniffing of student lockers in public hallways and automobiles parked on public parking lots was a search. The sniffs occurred while the objects were unattended and positioned in public view. Had the principal of the school wandered past the lockers and smelled the pungent aroma of marijuana wafting through the corridors, it would be difficult to contend that a search had occurred. Goldstein stands for the proposition that the use of the dogs' nose to ferret out the scent from inanimate objects in public places is not treated any differently. We hold accordingly that the sniffs of the lockers and cars13 did not constitute a search and therefore we need make no inquiry into the reasonableness of the sniffing of the lockers and automobiles.

The use of the dogs to sniff the students, however, presents an entirely different problem. After all, the fourth amendment "protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). Neither Goldstein nor Viera involved sniffs of persons and therefore they are not controlling. The Second and Ninth Circuits specifically noted that people had not been sniffed when they upheld the constitutionality of dogs sniffing objects. Bronstein, supra; Solis, supra. The Seventh Circuit is the only circuit to have held that sniffs of school children do not constitute a search, Renfrow, supra. We note that there was apparently no evidence in Renfrow that the dogs actually touched the students, while the dogs in the GCISD program put their noses right up against the children's bodies. Furthermore, as was noted above, the Renfrow decision has been universally criticized by the commentators.14

The students' persons certainly are not the subject of lowered expectations of privacy. On the contrary, society recognizes the interest in the integrity of one's person, and the fourth amendment applies with its fullest vigor against any intrusion on the human body. In fact, the Supreme Court has suggested that all governmental intrusions upon personal security are governed by the fourth amendment:

In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness. Cf. Brinegar v. United States, 338 U.S. 160, 183 (69 S.Ct. 1302, 1314, 93 L.Ed. 1879) (1949) (Mr. Justice Jackson, dissenting). Compare Camara v. Municipal Court, 387 U.S. 523, 537 (87 S.Ct. 1727, 1735, 18 L.Ed.2d 930) (1967). This seems preferable to an approach which attributes too much significance to an overly technical definition of "search," and which turns in part upon a judge-made hierarchy of legislative enactments in the criminal sphere.

Terry v. Ohio, 392 U.S. 1, 18 n.15, 88 S.Ct. 1868, 1878 n.15, 20 L.Ed.2d 889 (1968). See generally, Gardner, Sniffing for Drugs in the Classroom-Perspectives on Fourth Amendment Scope, 74 Nw.U.L.Rev. 803, 848 (1980).15

The circuit courts have unanimously assumed that the use of magnetometers in airport terminals to detect concealed weapons, an activity far less intrusive than the use of large dogs to sniff the bodies of children, is a search. The Fourth Circuit originally held that the magnetometer walk-through

is still a search. Indeed, that is the very purpose of the magnetometer: to search for metal and disclose its presence in areas where there is a normal expectation of privacy.

United States v. Epperson, 454 F.2d 769, 770 (4th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972); see also, United States v. Albarado, 495 F.2d 799 (2d Cir. 1974); United States v. Cyzewski, 484 F.2d 509 (5th Cir. 1973); United States v. Slocum, 464 F.2d 1180 (3rd Cir. 1972); United States v. Bell, 464 F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972).

The commentators agree that "the intensive smelling of people, even if done by dogs, (is) indecent and demeaning." 74 Nw.U.L.Rev. at 850; see also 71 J.Crim.L. & Criminology at 44. Most persons in our society deliberately attempt not to expose the odors emanating from their bodies to public smell. In contrast, where the Supreme Court has upheld limited investigations of body characteristics not justified by individualized suspicion, it has done so on the grounds that the particular characteristic was routinely exhibited to the public. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplars); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (handwriting exemplars); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (fingerprints). Intentional close proximity sniffing of the person is offensive whether the sniffer be canine or human. One can imagine the embarrassment which a young adolescent, already self-conscious about his or her body, might experience when a dog, being handled by a representative of the school administration, enters the classroom specifically for the purpose of sniffing the air around his or her person.

We need only look at the record in this case to see how a dog's sniffing technique-i.e., sniffing around each child, putting his nose on the child and scratching and manifesting other signs of excitement in the case of an alert-is intrusive. The SAI representative explained that Doberman pinschers and German shepherds were used precisely because of the image maintained by the large dogs. Newman depo. at 16. Plaintiff, Heather Horton, described what happened when the dog entered the classrooms:

Well, we were in the middle of a major French exam and the dog came in and walked up and down the aisles and stopped at every desk and sniffed on each side all around the people, the feet, the parts where you keep your books under the desk.

H. Horton depo. at 3. Ms. Horton went on to express her fear of the large dogs. Id. at 12. The SAI representative testified that the dogs put their noses "up against" the persons they are investigating. Newman depo. at 43.

On the basis of our examination of the record which indicates the degree of personal intrusiveness involved in this type of activity, we hold that sniffing by dogs of the students' persons in the manner involved in this case is a search within the purview of the fourth amendment. We need not decide today whether the use of dogs to sniff people in some other manner, e.g., at some distance, is a search.

Our decision that the sniffing is a search does not, however, compel the conclusion that it is constitutionally impermissible. The fourth amendment does not prohibit all searches; it only restricts the government to "reasonable" searches. The reasonableness of the procedure turns in this case on the school environment, to be discussed in Part II.B. But the reasonableness is also governed in part by general fourth amendment principles.

A dog's sniff of a person, particularly where the dogs actually touch the person as they do in the GCISD program, may be analogous to the warrantless "stop and frisk" upheld by the Supreme Court on the basis of a suspicion that fell short of probable cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Confronted with a choice between subjecting a useful and, indeed virtually indispensable, tool for both the protection of law enforcement officers and the prevention of crime to a requirement of probable cause and a warrant or of giving the police unbridled discretion to stop and frisk citizens, the Court rejected this monolithic, "all-or-nothing" view of the fourth amendment. Instead, it recognized a new category of search and seizure-the minimally intrusive stop and frisk-that could be conducted upon a finding of reasonable suspicion. Since the circumstances in which a stop and frisk is used preclude obtaining a warrant, the procedure is exempt from the warrant requirement.

The Court in effect adopted a balancing approach whereby the intrusiveness of the search is measured against society's need for the information. See generally 1 W. LaFave, Search and Seizure § 2.2(a), at 236 (1978). Similarly, the courts have upheld the warrantless use of magnetometers in light of their minimally intrusive character as weighed against the danger of skyjacking. E.g., Cyzewski, supra. Because the sniffing in this case occurred in a school environment, we need not address the question whether the sniffing of a person in a non-school setting is sufficiently intrusive to require the full panoply of fourth amendment protections-probable cause and a warrant-or whether such sniffing is less intrusive, requiring only reasonable suspicion. We leave that question for another day.

B. The Fourth Amendment in the Public Schools.

The courts have encountered substantial difficulty in accommodating the fourth amendment to the special situation presented by the public schools, where school officials have both a right and a duty to provide a safe environment conducive to education. At one time, it was not uncommon for a court to view the school official who searched a student as acting under authority derived from the parent and therefore as a private party not subject to the constraints of the fourth amendment. See, e.g., Mercer v. State, 450 S.W.2d 715 (Tex.Civ.App.-Austin 1970); see generally Buss, The Fourth Amendment and Searches of Students in Public Schools, 59 Iowa L.Rev. 739, 765-67 (1974); Comment, Search and Seizure in Public Schools: Are Our Children's Rights Going to the Dogs? 24 St. Louis U.L.J. 119, 127 (1979). As courts in most recent cases have decided, we think it beyond question that the school official, employed and paid by the state and supervising children who are, for the most part, compelled to attend,16 is an agent of the government and is constrained by the fourth amendment. Accord, Bellnier v. Lund, 438 F.Supp. 47 (N.D.N.Y.1977); State v. Baccino, 282 A.2d 869 (Del.Super.1971); State v. Young, 234 Ga. 488, 216 S.E.2d 586, cert. denied, 423 U.S. 1039, 96 S.Ct. 576, 46 L.Ed.2d 413 (1975); People v. Scott D., 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315 N.E.2d 466 (1974). The Supreme Court's application to school officials of other constitutional restraints applicable only to state action compels that result. See, e.g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).

But the decision that school officials are governed by the fourth amendment does not dictate a holding that their activity in this case was unconstitutional. The basic concern of the fourth amendment is reasonableness,17 and reasonableness depends on the circumstances. Often the ordinary requirements of the fourth amendment are modified to deal with special situations. See, e.g., Terry, supra; Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) (administrative search); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (same); United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973) (airport search to prevent air piracy); Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967) (border search). The public school presents special circumstances that demand similar accommodations of the usual fourth amendment requirements. When society requires large groups of students, too young to be considered capable of mature restraint in their use of illegal substances or dangerous instrumentalities, it assumes a duty to protect them from dangers posed by anti-social activities-their own and those of other students-and to provide them with an environment in which education is possible. To fulfill that duty, teachers and school administrators must have broad supervisory and disciplinary powers.18 At the same time, though, we must protect the fourth amendment rights of students. Indeed, constitutional rights in the schools take on a special importance. "That (the schools) are educating the young for citizenship is reason for scrupulous protection of constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." Barnette, supra