ATTORNEY GENERAL OPINION: 99-1103

On November 17, 2001, the Attorney General issued an opinion regarding whether a public high school can implement a policy requiring an unannounced, random and neutral basis canine search where students would be required to leave their belongings to be sniff-searched. If the canine alerts to the presence of drugs, the student's personal belongings would be searched by school officials without the student's consent.

This office submitted legal issues to the A.G. prior to the issuance of his opinion. While our observations submitted to the Attorney General on behalf of CSSA, CPCA and CPOA were not contrary to the A.G.'s ultimate conclusion, our conclusion was somewhat different.

The Attorney General's main focus was on the implementation of the search policy. The Attorney General stated:

"the proposed policy would be random and without suspicion or probable cause. It would not be based upon a known drug crisis at the school. Application of the individualized suspicion requirement would not place in jeopardy the interests of school administrators. Accordingly, it would be unreasonable and thus unconstitutional under the federal Constitution and the California Constitution to separate the students from their personal belongings in order to have their belongings sniffed by drug detection dogs."

The Attorney General concluded that school administrators at a public high school may not implement such a search policy.

In the case of B.C. v. Plumas, 192 F.3d 1260 (1999), students at Quincy High School in Plumas County, California, were told by the principal and vice principal to exit their classroom. As the students left the classroom, they passed by a deputy sheriff and a drug-sniffing dog stationed outside the classroom door. The dog alerted to a student other than the plaintiff. The students remained outside of the classroom while the dog sniffed their belongings. While the students were returning to their classroom, the dog once again alerted to the same student. That student was taken away and searched by school officials. No drugs were found either at the high school or on the student.

The United States Court of Appeal, Ninth Circuit held that (1) a dog sniff of high school students was a Fourth Amendment search; (2) a random and suspicionless dog sniff search of a student was unreasonable under the circumstances; (3) defendant officials were entitled to qualified immunity from unreasonable search claims against them in their individual capacities; and (4)a student suffered no seizure of his person or property during the dog sniff of the classroom.

The Court of Appeal held that generally a search must be based upon "individualized suspicion". However a suspicionless search may be "reasonable in limited circumstances, where the privacy interests implicated by the search are minimal and where government interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion."

The Court of Appeal concluded, however, that the "random and suspicionless" dog sniff of B.C. was unreasonable. The Court further held that in the "absence of a drug problem or crisis at Quincy High, the government's important interest in deterring student drug use would not have been placed in jeopardy by a requirement of individualized suspicion."

WHAT DOES THIS OPINION MEAN FOR YOUR DEPARTMENT

Confirm that school officials have a suspicion, individualized or otherwise, that a drug problem exists in their particular school on a case by case basis. Once school officials have determined that a real problem exists, advise your officers that the canine should search only the belongings of a student. Make sure that your officers are trained in the proper procedure of searches conducted by canines.

*********

As always, prior to taking such action, you should consult your legal counsel. If you have any questions or wish to discuss this matter, please call Martin J. Mayer at (714) 446-1400.