Originally appeared in the CAS Weekly Newsletter.
Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
I tried to get a police dog into my school on the morning of an overnight, out-of-state field trip so that the dog could sniff student luggage before putting the bags on the buses. I felt the need to do this because I had received an anonymous tip about drug smuggling. When I approached the police, however, they were unwilling to provide the dog. They said that, even though no student would be in the room (cafeteria) and that I was asking them to sniff bags only, those bags were the personal property of the students so they needed probable cause to have the dog sniff the luggage and that my tip was only hearsay.
I accepted the explanation, but I still don’t agree with it. I thought that, on school property, dogs are allowed to sniff bags but not students. Why was my tip inadequate from a police standpoint given the public school environment? In the future, would it be legal to have parents sign a “permission to drug sniff” form or something similar and inform them that failure to sign would mean the student couldn’t attend the trip?
Dear Dog Lover:
Your police department has many responsibilities, and sending a dog in to sniff luggage at your school may not be on the top of its priority list. I will say, however, that its response to you appears to be an overly cautious approach that fails to recognize the special responsibility that school officials have for student safety.
We start with the premise that the students in your care have the right under the Fourth Amendment to be free of unreasonable searches and seizures. But the courts have recognized that school officials are not subject to the same limitations that apply to the police, given the rights and responsibilities school officials have under the longstanding in loco parentis doctrine to supervise and care for the children in their charge. Specifically, the United States Supreme Court ruled in 1985 that school officials do not need a warrant or probable cause prior to conducting a search. Rather, the standard for a search of students in school is (1) is there reasonable cause for the search at its inception, and (2) is the scope of the search reasonably related to the purpose of the search and not excessively intrusive in light of the age and sex of the students involved. T.L.O. v. New Jersey (U.S. 1985).
To be sure, in their world the police are subject to the probable cause standard they cite. It is necessary therefore to determine the role of the police here. If police officers come into a school as part of a criminal investigation, it is clear that they are acting in their law enforcement capacity, and the higher probable cause/warrant requirements apply. As I understand your plan, however, school officials are seeking the assistance of the police sniffer dog to detect drugs in student luggage. Under these circumstances, it is fair to describe the role of the police and their sniffer dog as a detection aide, analogous to the use of breathalyzers at the prom. As long as you are clear that this is a school administrative matter in which the police are assisting the school, the T.L.O. reasonable cause standard should apply here.
In considering your plan, we start by noting that walking the sniffer dog past the students’ luggage is not a search because you are not intruding into any privacy expectations of the students. Then, if the sniffer dog alerts on a specific piece of luggage, the resulting search will be based on reasonable suspicion (presuming that the sniffer dog knows what he is doing). When courts have reviewed such actions, they have found that such searches conform to the T.L.O. standard and do not violate the Fourth Amendment rights of the students.
Legal Mailbag can also answer your last two questions. First, whether a tip alone constitutes reasonable cause for a search will depend on all the facts and circumstances. In general, an anonymous tip would not constitute reasonable cause unless you have past experience with that anonymous tipper to show that the tipper is reliable. Here, however, any search of the students’ luggage would be based on the alert of the sniffer dog, not the initial anonymous tip.
Finally, when constitutional rights are in issue, school officials cannot require that students (or parents) waive those rights as a condition of participating in a school activity, such as this trip. Thus, a “permission to drug sniff” form is a non-starter. However, by basing any search of student luggage on the reasonable cause provided by the sniffer dog, you won’t have to ask anyone to waive any rights.