Students and Dog Searches... Constitutional?
Schools are consistently inviting law enforcement officials into the school to conduct contraband sweeps with specially trained dogs. This is arguably unconstitutional. School officials have the ability to require students to open their lockers upon demand, but going through the contents of a student’s personal belongings requires a low burden of proof—reasonable articulable suspicion, rather than probable cause. The goal of preventing drugs and guns in school is a highly laudable and important policy for schools. Whether or not this modeling of our constitutional principles, in particular the use of drug dogs as a tactic to ferret out contraband, is helpful over time is questionable.
If the police were to walk up and down Main Street with a dog, they cannot apply for a warrant, nor open a vehicle, on the basis alone that a dog is “hitting” on a particular car, although it is very close. This does not satisfy the probable cause requirement in the Fourth Amendment. The Fourth Amendment disallows unreasonable searches, and searches that are performed must be supported by “probable cause,” which means "information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime or that evidence of a crime or contraband would be found in a search.” The U.S. Supreme Court has opined that the use of a well-trained narcotics-detection dog—one that "does not expose noncontraband items that otherwise would remain hidden from public view,"—during a lawful traffic stop, generally does not implicate legitimate privacy interests. [Emphasis added by author]
But when these sniffs are done in a school, law enforcement can open up a student’s personal belongings without meeting the probable cause standard. Why? Our Supreme Court has said that the Fourth Amendment protections do apply to schools, but due to the fact that our society recognizes that students are minors and that society has an interest in reducing drugs and other contraband in schools, school administrators, who are subject to constitutional restraints on invading a student’s privacy and liberty, must only meet the lower reasonable articulable suspicion standard. Therefore, a dog “hitting” on a particular school bag could meet that low burden, but it is still very questionable because the Supreme Court says one still needs independent, objective facts upon which to rest their suspicion. A dog may not meet that standard without more.
Also worth noting, is that police dogs are not infallible and can falsely “hit” on things that are not contraband, such as perfume, or “hit” on residues of substances not illegal, such as gun powder. So, as hunting begins, students may be shooting guns at wild game, a legal activity, but they will later be searched for weapons at school because of gun powder residue innocently left on clothing or backpacks. Nevertheless, this form of search and seizure, although legal, is over-inclusive, meaning that too many innocent students will now be subject to school and law enforcement rummaging through the intimacies of the person and his or her possessions based simply on what a dog indicates.
Teenagers are not uninformed and unsophisticated. Perhaps students will leave contraband in a place other than school, but does the use of dogs stop the actual behaviors? And what are the unintended consequences of allowing dogs into schools? Will students be dulled as to their particular constitutional rights so as to make future, unreasonable intrusions more tolerable? What are the effects of innocent students being subjected to searches? Does the search end at the locked, private journal, or do school officials and law enforcement now have enough suspicion to read through the thoughts of a 15-year-old girl? They could assert that she may be keeping a log of all her drug activities. All of this because of dog sniffs…perhaps hitting on the alcohol content of a bottle of perfume? Should students be advised prior to the dog sweeps of what their rights are if a dog hits on something? With all of these scenarios in mind, I cannot imagine that the administrative log jam of time-consuming paperwork, wasted money, and personal intrusions into the lives of students makes it even worth performing these searches in the first place, but nevertheless, this is the current state of our schools. Can this use of dogs expand further into a constitutional slippery-slope that will jeopardize the rights of innocent, law-abiding students? And do we just let it happen?
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