In an article in the local paper this month1, it was announced that the local school system entered into a contract to have dogs do frequent searches of the school grounds for “illicit substances and contraband including, marijuana, heroin, cocaine, methamphetamine, alcohol, commonly abused medications, gunpowder, ammunition and firearms.” Some have applauded the schools for being proactive as more and more teenagers are being exposed to illicit drugs and stories of guns in schools make the news.
Others, however, decry an invasion of our students' 4th amendment rights against unlawful search. 2
More concerning to this attorney, however, is the removal of law enforcement from the equation. There are certain standards that state employees or agents of the state must follow when dealing with 4th amendment rights. According to the story in the paper (and without having reviewed the contract or agreements with local law enforcement), principals can decide what penalty is appropriate for students on whose person or property the dogs find contraband.
Why is this concerning? It lowers the standard needed to search student belongings. In a line of cases, the Tennessee Supreme Court and other appellate courts have decided a few interesting things:
- Regular law enforcement officers need probable cause to search a student's belongings for contraband.3
- School officials only need reasonable suspicion to search belongings.4
- Tennessee courts have held that a School Resource Officer can hold a dual role as school administration as well as law enforcement, so the lower standard is applied to them- that is, they need only reasonable suspicion to initiate a search. 4
Why is this concerning in regard to a private company sending dogs through the schools? By removing the law enforcement component that already exists when the local Police and Sheriff's Departments perform the searches, it drops the standard from Probable Cause to search to Reasonable Suspicion- a much lower standard.
Police dogs have often been referred to as “probable cause generators,” that is, the dogs' hits may be conditioned less on actual detection and more on their trainer's desires to get probable cause and the dog's desire to please the trainer. Recent studies have shown that dogs may be accurate about 50% of the time. 5
So, what are my concerns? We have “reasonable suspicion generators” with a 50% accuracy rate that are under the control of school administrators instead of law enforcement. It is up to the administrators as to whether the results get reported, whether the student is expelled, or whether the child ends up in juvenile court.
Other districts that have contracted with these companies have had mixed results, both from the searches (for instance, the dog hit on some old pizza, dangerous to the student maybe, but not contraband) as well as whether the expensive program actually reduced contraband level or drug use.6
If you have concerns or a case where you think your Fourth Amendment rights have been violated, call us at (901) 726-3854 for a free consultation.
- Constitution of the United States of America, 4th See also Constitution of the State of Tennessee, Art. 1, Section 7: “That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence, are dangerous to liberty and ought not be granted.”
- “Generally, government actors cannot conduct a searchunless they possess a judicial warrant that was obtained upon a showing of probable cause to believe a crime had been committed.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)
- “In holding that the standard of reasonableness applied to a searchof a student by a school official, the Court in L.O. was careful to point out that it was only addressing searches conducted “by school authorities acting alone and on their own authority” and that they offered no opinion on the “the question of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies.” R.D.S. v. State, 245 S.W.3d 356, 366–67 (Tenn. 2008)