Students 4th Amendment "Rights" in Public Fool System Basically Non-Existent: Considerations When Implementing Randomized Drug Dog Searches in Schools

From [JD Supra] One of our favorite sources for Franczek email alerts is our readers, and we recently received a question from a Twitter follower about the legal considerations related to randomized dog searched in public schools. We all know from Law & Order™ that the Fourth Amendment of the United States Constitution protects individuals from “unreasonable” searches and seizures by the police, but we also know that student rights are more limited in the school context. How does this intersection of rights play out with canine searches in schools?

The Illinois School Code allows schools to use trained canines to search student lockers and other school property. The Illinois School Code states that schools may search lockers, desks, parking lots, and other school property and equipment owned or controlled by the school for illegal drugs, weapons, or other illegal or dangerous substances or materials, including searches conducted through the use of specially trained dogs. Moreover, the School Code says that, if a dog sniff of school property produces evidence that a student is violating the law or a school rule, the school may seize the evidence and turn it over to the police. Finally, the School Code warns students that they have no reasonable expectation of privacy in school property such as lockers, desks, and parking lots, or in personal belongings left in such property.

Although this School Code authority seems to settle the question, canine searches and searches conducted after a canine alerts must still be constitutional under the Illinois and United States Constitutions. A student may argue that a dog sniff or post-alert search of his or her person or belongings is unreasonable under the Fourth Amendment, for instance, because there was no individualized suspicion that the student engaged in illegal conduct before the search.

There is a two-step test for determining the reasonableness of a search conducted by a school official:

Is the search justified in its inception—meaning that there is a reasonable suspicion that a crime is being committed or that the search is needed to enforce school policy?
Is the search reasonable in its scope?

Neither the Illinois Supreme Court nor the United States Supreme Court has specifically addressed the constitutionality of random dog sniffs or post-alert searches in the school setting. At least one case in the Federal Court of Appeals for the Seventh Circuit, which has jurisdiction over Illinois, has addressed the issue head on. It determined that a dog search of students in a classroom and the searches of a student after a dog alerted on the student did not violate the Fourth Amendment.

In the Seventh Circuit case and at least one case from another jurisdiction, the court was persuaded that a dog sniff was constitutional because there was evidence of a recent increase in the use of drugs among students at the school preceding the dog sniff. Case law from other jurisdictions suggests, however, that a search of school property when students are not present is different from the search of student’s person. This suggests that so long as students’ persons are not searched, there need not be evidence of recent increased drug use or possession by the student body. Because this theory is untested in any court with jurisdiction over Illinois, the most conservative approach would be to conduct dog sniffs of school property only with reasonable evidence of increased drug use or possession among the general student population. However, case law from other jurisdictions suggests that dog sniffs of school property may not violate the Fourth Amendment when students are not present.

There are a myriad of other questions that come up in this area: Who can carry out dog sniffs for a school? Can a school be put on lock-down to conduct dog sniffs and post-alert searches? What notice, if any, must—or should—be given before searches are conducted? Given the complexity and individualized nature of this area of law, it is prudent to involve legal counsel when determining whether to employ random searches at your school or district.