Request By:
Hon. Alva A. Hollon, Jr.
Hollon, Hollon & Hollon
Hollon Building
Drawer 779
Hazard, Kentucky 41701
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter you requested an opinion from this office regarding the legality of procedures in effect in the Knott County School District for the use of drug sniffing dogs. Superintendent R. B. Singleton entered into an agreement with the Kentucky State Police in March 1990, granting the Kentucky State Police the authority to use drug dogs in the schools of Knott County for the purpose of eradicating any illegal drugs from the schools. The agreement, attached, provides that all requests for the use of drug dogs must come from the school superintendent in writing to the Post Commander; that the discovery of any controlled substances or the development of probable cause to believe that such substances may be found on school property shall result in criminal investigation, and prosecution as appropriate; that the Kentucky State Police will not assist with administrative searches but criminal investigations only; that where probable cause to believe that controlled substances are present, a search warrant will be obtained prior to the search, except in an emergency; and that except in an emergency the use of drug dogs shall be limited to hours when the students are not present, i.e., in class. The visits are to be unannounced and the policy is to remain effective through the 1990-91 school year.
In particular, you ask whether it is proper for the school district to conduct searches of student's desks or lockers for illegal drugs in cooperation with the Kentucky State Police resulting in criminal prosecutions or whether the school shoul limit its searches to administrative searches for the purpose of maintaining school discipline. You also ask, whenever school officials cooperate with law enforcement officers to search for contraband, what legal standard would apply before a search should take place: reasonable suspicion or probable cause.
Investigations involving the use of drug sniffing dogs to eliminate the use of illegal drugs in school systems have been upheld when carried out in response to a perceived drug problem. Horton v. Goosecreek Independent School District , 690 F.2d (5th Cir. 1982); Doe v. Renfro, 475 F. Supp. 1012 (N.D. Ind. 1979); Jones v. Latexo Independent School District, 499 F. Supp. 223 (E.D. Tex. 1980). These investigations have been upheld where no criminal investigation is intended but merely disciplinary action, as needed, for violation of school rules. Doe, supra; Jones, supra; Horton, supra ; Zamora v. Pomeroy , 639 F.2d (10th Cir. 1981). Police departments may assist with or organize the investigation to search for and eliminate illegal drugs in the school system where the investigation is part of an administrative sanction to discipline school children who break school rules. Doe, supra; Zamora, supra .
It is well established that investigations by school officials, with or without the assistance of law enforcement officers, constitute state action. New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985); Brooks v. East Chambers Consolidated Independent School District, 730 F. Supp. 759 (S.D. Tex. 1989); Jones, supra. The fourth amendment protecting citizens against improper searches and seizures applies to states through the fourteenth amendment and limits actions of public school officials. New Jersey v. T.L.O. supra .
The Supreme Court has stated that the fourth amendment applies to activities of civil authorities as well as criminal authorities. Id . The fourth amendment requires that searches and seizures be reasonable and requires a balancing between the individual's legitimate expectation of privacy and security and the government's need to maintain order. New Jersey v. T.L.O., supra. In school settings, the restrictions of the fourth amendment have been eased; a warrant is not required and reasonable suspicion rather than probable cause is required before engaging in a search. This has been held to be the case whether the search has resulted in civil or criminal penalties. New Jersey v. T.L.O., supra; Doe, supra; Jones, supra; Zamora, supra ; Horton, supra ; Bilbrey, 738 F.2d 1462 (9th Cir. 1984). Also see National Treasury Employees Union v. Von Raab, 489 US 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989), for additional discussion of New Jersey v. T.L.O., supra.
Therefore, under the above mentioned cases, the inquiry in a challenge under the fourth amendment is, if a search is deemed to have occurred, whether the search was reasonable. In determining whether a search is reasonable, it is necessary to consider whether the action was justified at its inception and whether the search was reasonably related in scope to the situation which justified action in the first place. New Jersey v. T.L.O., supra; Doe, supra; Jones, supra; Zamora, supra ; Horton, supra . Another aspect to consider is whether the search is individualized. One case has held that blanket searches are not reasonable, particularly where the dogs are brought into classrooms to sniff up and down every aisle. Horton, supra . See Appendix for more information on the cases involving searches with dogs in school settings.
It is our opinion that the use of drug sniffing dogs may best be defended in the following circumstances.
(1) There is evidence of drug or alcohol abuse in the schools.
(2) The purpose of the search is to reduce or eliminate the use of illegal substances in the schools through the application of disciplinary action for violation of school policies where possible. This is not to say that where individualized suspicion exists criminal sanctions may not be required.
(3) Blanket searches of students should not take place; however, dogs may sniff lockers or other locations under partial control of the student to which the student has access during the school day.
(4) Law enforcement officers may assist in the search; however, where criminal sanctions are to apply, suspicion should be individualized.
(5) While courts differ in their view of what constitutes a search, it is advisable to assume that the use of a drug sniffing dog may be held to constitute a search under the fourth amendment, and that, therefore, the search must be reasonable. That is, reasonable cause should exist to believe that a student has violated a law or a school policy.
(6) While some courts consider that school officials operate in loco parentis, and, therefore, have protection from prosecution, the Supreme Court has clearly indicated that searches conducted by public school officials constitute state action. Accordingly, any search, initially, must be justified. Reasonable grounds that a search will turn up evidence that a student has or is violating a law or rules of the school should exist and the measures adopted should be reasonably related to the objectives of the search and not too intrusive in view of the student's age, sex or nature of the infraction. New Jersey v. T.L.O., supra.
These are the criteria which this office recommends for consideration when a school district wishes to conduct searches for contraband with the use of drug sniffing dogs in cooperation with Kentucky State Police.
APPENDIX
To understand the legal standard, it is helpful to review its application in the cases involving the use of drug sniffing dogs in school settings. In Doe, supra, as the problem of illicit drug use became more visible in the school district, the school board elected to use drug detecting canines units in the junior high and high schools. The school officials and police agreed that no criminal investigation would result. Disciplinary actions would be taken as needed. Canine teams visited each classroom and went up and down the aisles. Children who were identified as carrying illicit drugs were asked to empty pockets and purses, and there were eleven body searches. The Court held that the investigative procedure was not a search and seizure in and of itself under the fourth amendment nor was the use of dogs a search. The search of clothing was a search but did not violate the fourth amendment in that the search was reasonable, only occurring upon alert of the dog. The body searches, however, were held to violate the fourth amendment in that they were considered unreasonable when viewing the students' age, the students' history and record in school, the seriousness and prevalence of the problem of drug abuse in the schools, and the situation which resulted in an immediate warrantless search.
In Jones, supra, in response to a perceived problem of growing drug abuse in the independent school district, the school board voted to employ a private corporation to inspect the school students and property for contraband with the aid of a drug sniffing dog. Again, no criminal penalties were to apply. The dog was presented to the children in an assembly program, and, unannounced, was brought to the school to move from classroom to classroom and go up and down the aisle sniffing each child in turn.
Upon the dog's giving an alert, the children were removed from class and told to empty their pockets. The dogs also sniffed the vehicles of the students. Here, the sniffing by the dogs was determined to be a search in that the dog virtually replaces the individual in his ability to smell drugs, rather than enhancing the individual's ability to do so. Therefore, the blanket inspection and search of students in vehicles from grades K through 12 by the sniffer dog was not considered reasonable. The Court held that the state must have a basis for subjecting a particular person to a search that invades his privacy.
The search of vehicles with the use of drug sniffing dogs was also considered to be unreasonable, in view of the fact that the students had no access to their vehicles while school was in session, and in view of the fact that the search was conducted in a blanket manner without any individualized suspicion. The Court noted that consent to search must be freely and voluntarily offered. In view of the fact that the fourth amendment applies in the civil area too, the Court held that evidence obtained against the plaintiffs by means of the unconstitutional search could not be used as justification for imposing punishment against them. Finally, the Court enjoined the board from further use of drug sniffing dogs to search persons or property in the absence of reasonable cause to believe that particular individuals were in possession of contraband in violation of school rules.
In Zamora, supra , a general investigation for contraband resulted when law enforcement officers brought drug sniffing dogs to sniff school lockers. Again, no criminal sanctions were to follow. This case focused more on the question of whether due process occurred prior to the student's transfer to an alternative school. The Court did not find the use of drug sniffing dogs improper and noted that, as the school had joint control of the lockers, the school clearly had a right to inspect the lockers.
Finally, in Horton, supra , in response to increased drug and alcohol abuse in the schools, the school district contracted with a private firm to bring in drug sniffing dogs to search for contraband. The students observed the dogs in assemblies; then, on a random unannounced basis, the dogs were taken to the schools to sniff students' lockers and automobiles and to visit classrooms to sniff the students, themselves. Upon the alert of a dog, the student was asked to allow a search of his pockets, purse and outer garments. Upon review of all of the drug sniffing dog cases, the Court ruled that the sniffing of objects by a dog is not a search and that, under those circumstances, the fourth amendment would not apply. Moreover, the fourth amendment protects people, the Court said, not places. On the other hand, the intentional sniffing of people was deemed to be a search and brings the requirements of the fourth amendment into play. In balancing the need of the school to maintain discipline and order against the students need for personal privacy and security, the Court concluded that there was no justification for a blanket search of children with dogs and that individualized suspicion would be required. Therefore, the Court concluded that the use of dogs for a blanket sniff search of students would be unconstitutional, but the use of dogs in a similar blanket search sniffing of lockers and cars would not be unconstitutional.