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  • Andrew Babiak
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    Drug-Detection Dogs in Public Schools
     
    Every board of education is required to establish a comprehensive program for the prevention, intervention, referral for evaluation, and referral for treatment of students in connection with alcohol, tobacco and drug use.[1]  During the 2011-12 school year, New Jersey school districts reported 2,419 incidents involving contraband use, 1,144 incidents of illegal substance possession, and 162 incidents of illegal substance distribution.[2]  Marijuana was involved almost 68% of the time in these incidents.
     
    One tool school officials may use to try help with the problem of controlled substances in their schools is the use of drug-detection canines. The United States Supreme Court has held that the use of scent dogs by law enforcement to sniff the outside of a container does not constitute a search for purposes of the Fourth Amendment.[3] However, New Jersey courts have held that “[t]he use of a drug-sniffing dog requires ‘reasonable and articulable suspicion’ that illegal activity has occurred or is taking place that will justify such special probing by a canine.”[4]  Accordingly, the New Jersey Attorney General recommends that before conducting an operation involving a drug scent dog, the police agency involved develop and follow an operational plan that makes sure that the dog does not come in direct contact with students.[5]  Moreover, it is important that there be evidence of illegal drug activity to support the use of the dog in the school.
     

    The constitutionality of the use of a drug sniffing dog in a public school setting was partially addressed in a recent federal case out of Missouri called Burlison v. Springfield Public Schools.[6]  The parents of a high school freshman sued the Springfield Public School District, the superintendent of schools and the high school principal, claiming that their son’s backpack was unreasonably seized and searched during a sweep of the classroom by a drug sniffing dog.  The sweep was done in accordance with the sheriff’s department’s policy, board policy, and school police procedures.[7]

     
    During the sweep which lasted approximately five minutes, the classroom was emptied and all students’ possessions were left behind. The boy involved, C.M., claimed that when he left his backpack it was fully zipped, and when he returned, it had been unzipped and searched. 
     
    The trial court granted summary judgment to the defendants and ordered the complaint dismissed, and the parents appealed. The 8th Circuit Court of Appeals concluded that, even assuming that C.M.’s backpack was seized, the seizure was part of a reasonable procedure to maintain student safety and security.  The court explained that there was evidence of a drug problem in the district with between 89 and 205 drug incidents per year from 2000 through 2011. In fact, C.M. testified that he knew of drug use in the school.  Ultimately, the court held that C.M.’s brief separation from his bag was reasonable and his rights were not violated. 
     
    School officials interested in using drug-detecting canines should review their board policies to ensure that they are up-to-date.  They should have reports available that support the use of a drug scent dog.  They should make sure that they have board support for any such effort. Finally, they should coordinate the operation with their board attorney and their local police department to ensure that proper procedures are followed and to avoid potential lawsuits.
     
     

    [1].  See N.J.A.C. 6A:16-3.1, -4.1 and  -6.1.

    [2].  Refer to the Commissioner’s Annual Report to the Education Committees of the Senate and General Assembly on Violence, Vandalism and Substance Abuse in New Jersey Public Schools for the period July 1, 2011 to June 30, 2012 available on the Internet at http://www.state.nj.us/education/schools/vandv/1112/vandv.pdf.

    [3].  See United States v. Place, 462 U.S. 699 (1983).

    [4].  See State of New Jersey in the Interest of C.J, 2008 WL 3892145, citing State v. Elders, 386 N.J.Super. 208 (App.Div.2006), rev’d in part, 192 N.J. 224 (2007) and State v. Cancel, 256 N.J.Super. 430 (App.Div.1992), certif. denied, 134 N.J. 484 (1993).

    [5].  See New Jersey School Search Policy Manual at 95.  The School Search Policy Manual is available on the Internet at http://www.state.nj.us/lps/dcj/school/.

    [6].  708 F.3d 1034 (8th Cir. 2013).

    [7].  The board policy in question permitted student property to be “screened in conjunction with law enforcement by using animals trained to locate and/or detect weapons and prohibited drugs.”  The school police procedures allowed scent dogs to be used at the district’s secondary school buildings “to protect the safety and health of the [d]istrict’s faculty, staff and students.”  It also permitted dogs to sniff student lockers, desks and backpacks.  Burlison v. Springfield Public Schools, 708 F.3d 1034, 1037 (8th Cir. 2013).