On petition for writ of certiorari to the United States Court of
Appeals for the Seventh Circuit.
The petition for a writ of certiorari is denied.
Justice BRENNAN, dissenting.
I dissent from the denial of the petition for certiorari. I
would grant the petition and summarily reverse the judgment of the
Court of Appeals insofar as it affirmed the judgment of the
District Court. I cannot agree that the Fourth Amendment authorizes
local school and police officials to detain every junior and senior
high school student present in a town's public schools and then,
using drug-detecting, police-trained German shepherds, to conduct a
warrantless, student-by-student dragnet inspection "to see if there
were any drugs present." While school officials acting in loco
parentis may take reasonable steps to maintain a safe and healthful
educational environment, their actions must nonetheless be
consistent with the Fourth Amendment. The problem of drug abuse in
the schools is not to be solved by conducting schoolhouse raids on
unsuspecting students absent particularized information regarding
drug users or suppliers.
I
Petitioner Diane Doe is a 13-year-old student at Highland Junior
High School in Highland, Ind., a community of approximately 30,000
residents. Highland has one junior high school and one senior high
school, located in adjacent buildings. There are 2,780 students
enrolled in those schools.
On the morning of March 23, 1979, petitioner went to her
first-period class as usual. Shortly before 9:15, when the class
was scheduled to adjourn, petitioner's teacher ordered
Page 451 U.S.
1022 , 1023
everyone to remain seated until further notice. An assistant
principal, accompanied by a police-trained German shepherd, a dog
handler, and a uniformed police officer, then entered the classroom
as one of six teams conducting simultaneous raids at the Highland
schools. For the next 21/2 hours, petitioner and her classmates
were required to sit quietly in their seats with their belongings
in view and their hands upon their desks. They were forbidden to
use the washroom unless accompanied by an escort. Uniformed police
officers and school administrators were stationed in the halls.
Guards were posted at the schoolhouse doors. While no student was
allowed to leave the schoolhouse, representatives of the press and
other news media, on invitation of the school authorities, were
permitted to enter the classrooms to observe the proceedings.
The dogs were led up and down each aisle of the classroom, from
desk to desk, and from student to student. Each student was probed,
sniffed, and inspected by at least 1 of the 14 German shepherds
detailed to the school. When the search team assigned to
petitioner's classroom reached petitioner, the police dog pressed
forward, sniffed at her body, and repeatedly pushed its nose and
muzzle into her legs. The uniformed officer then ordered petitioner
to stand and empty her pockets, apparently because the dog
"alerted" to the presence of drugs. However, no drugs were found.
After petitioner emptied her pockets, the dog again sniffed her
body and again it apparently "alerted." Petitioner was then
escorted to the nurse's office for a more thorough physical
inspection.
Petitioner was met at the nurse's office by two adult women, one
a uniformed police officer. After denying that she had ever used
marihuana, petitioner was ordered to strip. She did so, removing
her clothing in the presence of the two women. The women then
looked over petitioner's body, inspected her clothing, and touched
and examined the hair on
Page 451 U.S.
1022 , 1024
her head. Again, no drugs were found. [
Footnote 1] Petitioner was subsequently allowed to
dress and was escorted back to her classroom.
Each of the 2,780 students present at Highland Junior and Senior
High Schools that day was subjected to the mass detention and
general exploratory search. Eleven students, including petitioner,
were subjected to body searches. Although the police dogs "alerted"
50 times, no junior high school students, and only 17 senior high
school students, were found to be in possession of contraband. This
contraband included marihuana, drug "paraphernalia," and three cans
of beer.
Petitioner brought suit in the District Court for the Northern
District of Indiana against various Highland school officials, the
Highland Police Chief, and the trainer of the German shepherds used
in the search. Claiming a violation of rights secured by the
Fourth, Ninth, and Fourteenth Amendments to the Constitution,
petitioner sought injunctive and declaratory relief and
compensatory and punitive damages under 42 U.S. C. 1983 and 1985(3)
(1976 ed., Supp. III).
After trial, the District Court rejected petitioner's claims.
475 F.
Supp. 1012 (1979). First, it found that all aspects of the mass
detention and inspection, except for the strip-search, were
constitutionally valid. Then, it dismissed petitioner's action
against the Police Chief and the dog trainer on the ground that
they did not personally participate in the strip-search, and it
denied petitioner's claim for damages against the school
administrators on the ground that they enjoyed qualified good-faith
immunity under Wood v. Strickland,
420 U.S. 308 (1975).2
The Court of Appeals for the Seventh Circuit affirmed all parts
of the judgment except for the grant of good-faith im-
Page 451 U.S.
1022 , 1025
munity with respect to the strip-search.
631
F.2d 91 (1970).3 Expressly relying upon the District Court's
reasoning, it held that the entry into the classrooms "was a
justified action taken in accordance with the in loco parentis
doctrine," and that "the sniffing of a trained narcotic detecting
canine is not a search." 475 F.Supp., at 1019. The court also found
that there was sufficient evidence of drug activity at the Highland
schools to establish "reasonable cause to believe" contraband would
be found, and thus to justify the use of drug-sniffing police dogs.
Petitioner's request for rehearing en banc was denied, with Chief
Judge Fairchild and Judges Swygert, Wood, and Cudahy dissenting.
635 F.2d
582 ( CA7 1980).
II
I cannot agree that the Highland school officials' use of the
trained police dogs did not constitute a search. The dogs were led
from student to student for the express purpose of sniffing their
clothing and their bodies to obtain information that the school
authorities and police officers, with their less developed sense of
smell, were incapable of obtaining. In the case of petitioner, the
dog repeatedly jabbed its nose into her legs. Petitioner testified
that the experience of being sniffed and prodded by trained police
dogs in the presence of the police and representatives of the press
was degrading and embarrassing. I am astonished that the court did
not find that the school's use of the dogs constituted an in-
Page 451 U.S.
1022 , 1026
vasion of petitioner's reasonable expectation of privacy. See
Katz v. United States,
389 U.S. 347 (1967); Wolf
v. Colorado,
338 U.S.
25 (1949).4
Moreover, even if the Fourth Amendment permits school
authorities, acting in loco parentis, to conduct exploratory
inspections if they have " reasonable cause to believe" contraband
will be found, that standard could not apply where, as here, the
school officials planned and conducted the search with the full
participation of local police officials. [
Footnote 5] Once school authorities enlist the aid of
police officers to help maintain control over the school's drug
problem, they step outside the bounds of any quasi-parental
relationship, and their conduct must be judged according to the
traditional probable-cause standard. [
Footnote 6]
Although a number of incidents involving alcohol, drugs, and
related paraphernalia had been reported to school authorities in
the seven months preceding the raid on the Highland schools, those
incidents involved only 21 students, 13 of
Page 451 U.S.
1022 , 1027
whom had been "withdrawn" from the school system by March 1979.
475 F. Supp., at 1015, and n.1. At the time of the raid, school
authorities possessed no particularized information as to drugs or
contraband, suppliers or users. Furthermore, they had made no
effort to focus the search on particular individuals who might have
been engaged in drug activity at school. The authorities had no
more than a generalized hope that their sweeping investigative
techniques would lead to the discovery of contraband.
This Court has long expressed its abhorrence of unfocused,
generalized, information-seeking searches. See, e. g., Ybarra v.
Illinois,
444 U.S.
85 (1979) (mass investigatory detention, interrogation, and
search of bar patrons); Davis v. Mississippi,
394 U.S. 721 (1969) (mass
detention and fingerprinting of black men fitting general
description of perpetrator of crime). But that is precisely the
type of search the Highland officials conducted. They certainly had
far less than probable cause-or in my view even reasonable
suspicion-to believe that each student searched would possess drugs
or other contraband. Accordingly, I believe the search was
unconstitutional.
We do not know what class petitioner was attending when the
police and dogs burst in, but the lesson the school authorities
taught her that day will undoubtedly make a greater impression than
the one her teacher had hoped to convey. I would grant certiorari
to teach petitioner another lesson: that the Fourth Amendment
protects "[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures," and that before police and local officers are permitted
to conduct dog-assisted dragnet inspections of public school
students, they must obtain a warrant based on sufficient
particularized evidence to establish probable cause to believe a
crime has been or is being committed. Schools cannot expect their
students to learn the lessons of good citizenship when the
school
Page 451 U.S.
1022 , 1028
authorities themselves disregard the fundamental principles
underpinning our constitutional freedoms.
Footnotes
Footnote 1 Apparently the
police dogs alerted to petitioner because she had been playing with
her own dog, which was in heat, on the morning of the raid.
Footnote 2 The court also
denied petitioner's motion for class certification.
Footnote 3 With respect to
good-faith immunity, the Court of Appeals concluded:
"It does not require a constitutional
scholar to conclude that a nude search of a thirteen-year-old child
is an invasion of constitutional rights of some magnitude. More
than that: it is a violation of any known principle of human
decency. Apart from any constitutional readings and rulings, simple
common sense would indicate that the conduct of the school
officials in permitting such a nude search was not only unlawful
but outrageous under 'settled indisputable principles of law' [Wood
v. Strickland,
420 U.S.
308, 321, 1000 (1975 ) ] . . . We suggest as strongly as
possible that the conduct herein described exceeded the 'bounds of
reason' by two and a half country miles ." 631 F.2d, at
92-93.
Footnote 4 Although the
court below relied on a number of cases holding that the use of
trained dogs to sniff out contraband does not constitute a search,
see, e. g., United States v. Solis,
536 F.2d
880 (CA9 1976); United States v. Bronstein,
521 F.2d
459 (CA2 1975), cert. denied, 424 U.S. 918 (1976); United
States v. Fulero, 162 U. S.App.D.C. 206,
498
F.2d 748 (1974), those cases involved the sniffing of inanimate
and unattended objects rather than persons. Thus, even if those
cases correctly state the law, they are inapposite.
Footnote 5 For the same
reason, I would disagree with the Court of Appeals' conclusion that
the mass detention of students by school authorities and police
officers did not constitute an unreasonable seizure. See Terry v.
Ohio,
392 U.S. 1
(1968).
Footnote 6 The Court of
Appeals found it significant that the police officials agreed not
to seek prosecution of students found to possess drugs. However, I
agree with the dissenting opinion of Judge Swygert that the Fourth
Amendment's protection against unreasonable searches is based on "
'the right of the people to be secure in their persons,' " and that
it is constitutionally irrelevant that the police officers may have
agreed not to arrest students found to be in possession of
contraband.
635 F.2d
582, 584 (1980).
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