Eighth Circuit Upholds Drug Dog Survey of High School Classroom Against Fourth Amendment Challenge: Burlison v. Springfield Public Schools, 708 F.3d 1034 (8th Cir. 2013)
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Most Fourth Amendment cases that arise in the context of public schools involve alleged unreasonable searches – whether of students, lockers, purses or cell phones. Recently, however, the United States Court of Appeals for the Eighth Circuit was asked to decide whether the backpack of a high school freshman was unlawfully seized by local sheriff’s deputies and school officials during a brief drug dog survey conducted of his science classroom. Without deciding whether plaintiff’s temporary separation from his backpack constituted a “seizure,” the Eighth Circuit ruled that, even if it did, such a seizure was not “unreasonable” and, therefore, not unconstitutional.
The Burlison case presents a rather curious “so what?” scenario. At the request of school officials, deputies of the Greene County sheriff’s department agreed to conduct a drug dog survey of randomly selected areas within Central High School in Springfield, Missouri. One area selected was plaintiff’s science classroom. Before the dogs performed their drug-sniffing activities, deputies instructed the teacher and students to exit the classroom, but leave all personal belongings (backpacks, purses and other items) behind. During the ensuing five-minute survey, no dogs alerted and no student possessions were searched. The plaintiff, meanwhile, was required to wait patiently in the hallway where (so he claimed) he “could no longer see his belongings.”
Despite the fact that no drugs, alcohol, weapons or other unlawful items were found by the dogs, and despite the fact that the freshman was not singled out or disciplined for any wrongdoing whatsoever, the plaintiff filed suit against the school, school officials and sheriff under 42 U.S.C. § 1983, for the alleged violation of his civil rights. The drug dog survey, he claimed, was an unreasonable seizure of his property in violation of the Fourth Amendment. The United States District Court for the District of Western Missouri disagreed and granted summary judgment in favor of all defendants; on appeal, the Eighth Circuit affirmed.
The Court of Appeals acknowledged that students retain their Fourth Amendment rights against unreasonable searches and seizures, but such rights “are different in public schools than elsewhere.” 2013 WL 776816, *3, quoting Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 656 (1995). This is because public schools have a “legitimate need to maintain an environment in which learning can take place.” Id., quoting New Jersey v. T.L.O., 469 U.S. 325, 340 (1985). This includes providing a drug-free environment in which all students can safely learn. Thus, in a public school setting, probable cause is not required to justify a search or seizure. Rather, a reasonableness inquiry balances the nature of the intrusion on the student’s Fourth Amendment rights against the promotion of legitimate governmental interests.
In Burlison, the Eighth Circuit struck that balance firmly in favor of school officials. Without deciding whether plaintiff’s separation from his backpack qualified as a “seizure” within the meaning of the Fourth Amendment, the Court reasoned that, even if it did, any intrusion on plaintiff’s rights was “minimal.” Clearly, plaintiff’s freedoms “were not unreasonably curtailed by his brief separation from his possessions because he normally would not have been able to access or move his backpack during class time without permission.” Id., *4. On the other hand, the school district, in support of its motion for summary judgment, demonstrated an immediate need for the drug dog procedure by offering “substantial evidence” of a critical drug problem within its schools. In plaintiff’s freshman year alone, Central High School recorded 154 drug-related incidents. As the Supreme Court has expressly recognized, drug problems in schools are “serious in terms of size, the kinds of drugs used, and the consequences of that use both for our children and the rest of us.” Id., *5, quoting Board of Ed. of Ind. School Dist. No. 9 of Pottawatomie County v. Earls, 536 U.S. 822, 839 (2002). The serious health risks that drugs pose to children – including the risks of accidental overdose and death – more than outweighed any intrusion on plaintiff’s rights caused by the temporary “seizure” of his backpack during the five-minute survey.
Schools wrestling with the very real and serious problems posed by drugs, alcohol, weapons, sexual assaults and bullying, and which adopt clear and comprehensive policies aimed at protecting a safe learning environment for all students, should find encouragement in Burlison. The lessons of the 1985 Supreme Court decision in T.L.O. still survive. Absent heavy-handed or overly-intrusive activities, public schools should remain protected from civil rights liability as long as the search or seizure is justified at its inception and, as conducted, is reasonably related in scope to the circumstances that justified such interference in the first place.
Published in Developments in Municipal Law Spring 2013 Newsletter.