Petition — Diane Doe, Etc. v. Omer Renfrow, Individually and as Superintendent of Highland Community School Corporation
Supreme Court brief1981
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ta (~ = ] 3 0 6 we i ‘ U.S.
No. FEB 2 1981
IN THE ALEXANDIR L. STEY
CLS pe!
Supreme Court of the United States
OCTOBER TERM, 1980
DIANE DOE, By RoBert DOE AND NAOMI DOE, HER PARENTS
AND NEXT FRIENDS,
Petitioner,
vs.
OMER RENFROW, INDIVIDUALLY AND AS SUPERINTENDENT
OF SCHOOLS OF THE HIGHLAND COMMUNITY SCHOOL CoORPO-
RATION; GEORGE KURTEFF, INDIVIDUALLY AND AS PRIN-
CIPAL OF HIGHLAND SENIOR HIGH SCHOOL; HARVEY
KEIM, INDIVIDUALLY AND AS PRINCIPAL OF HIGHLAND Jvu-
NIOR HIGH SCHOOL; JOHN GUIDEN, LORRAINE KING,
LAWRENCE VASSER, BURTON MASEPOHL, AND
JOHN TERPSTRA, INDIVIDUALLY AND AS MEMBERS OF THE
BOARD OF TRUSTEES OF THE HIGHLAND COMMUNITY SCHOOL
CORPORATION; NOEL HALL, AS A MEMBER OF THE BOARD OF
TRUSTEES OF THE HIGHLAND COMMUNITY SCHOOL CORPO-
RATION; AL PRENDERGAST, INDIVIDUALLY, AS CHIEF OF
POLICE OF HIGHLAND, INDIANA, AND AS A MEMBER OF THE
BOARD OF TRUSTEES OF THE HIGHLAND COMMUNITY SCHOOL
CorRPORATION; JAMES TUROCI, as CHIEF OF POLICE OF
HIGHLAND, INDIANA; and PATRICIA LITTLE, INpDIvID-
UALLY AND AS DEPUTY SHERIFF OF MIAMI COUNTY, INDIANA;
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CiRCUIT
JOSEPH A. Morris, MYRNA Haart,
Two First National Plaza, Project Justice & Equality,
Chicago, Illinois 60603, Valparaiso University School of
(312) 372-2345, Law,
Valparaiso, Indiana 46383,
Davip A. GOLDBERGER, HARVEY GROSSMAN,
Ohio State University, Roger Baldwin Foundation of
College of Law, ACLU, Inc.,
1659 North High Street, 5 South Wabash Avenue,
Columbus, Ohio 43210, Chicago, Illinois 60603,
Counsel for Petitioner.
Pandick Press Midwest, Inc., Chicago © 454-7600
VS,
alain
QUESTIONS PRESENTED FOR REVIEW
1. Does the joint conduct of police and school authorities,
in detaining the entire student population of a public school,
and in exposing each child in the school to an individual search
of his person and immediate belongings by a police dog, to
interrogation by police officers, to the search of pockets and
purses, and to strip-searches, constitute invalid searches and
seizures prohibited by the Fourth Amendment to the United
States Constitution?
2. Where police and school authorities undertake such
joint conduct without warrants, without particular facts giving
rise to any suspicion concerning any specific child, and without
limitation to children suspected of wrongdoing, should declara-
tory and injunctive relief be accorded to the class of children
affected?
TABLE OF CONTENTS
Questions Presented for Review ..............ccccccccssssssssessorsees
IIL 107 tacacplueapanseoeiiuganenvevaninnnmetannon
Bae PIN IG oievccsncictsisscseoscccersereremeremisene
oiler enlelldeuaigheicepuneliaiige ax taniiodeisebans
I a0 reno ta en pi neccnniginteasniipegaenaiaiabee dione
I ries rics cag ob sup ceccadic onan seegntaconmonulacetenaimtechaoiapicatie’
Constitutional and Statutory Provisions Involved............
Oe GN oo ov casenscsenencnsvendeccensaventndecseianiioestvncns
PU ROOMS TOE COTATI CRG WET oon niscscisieccossscccsovrcsvestesssiees
I. This Case Involves Questions of Exceptional
Ss cits d caso aihan Sncovacvntecvvsiimaedavomdeiion cee
II. The Judgment of the Court of Appeals Conflicts
with Decisions of This Court.................:sseseeeeeeeeees
ee Re 8 re
ee ee ear
III. Review by This Court Will Secure Uniformity of
Decisions Among the Lower Courts...................+.
IV. The Judgment of the Court of Appeals Mis-
apprehended Significant Facts of the Case,
Thereby Working Substantial Injustice................
Sd ao da ocx guaneicdveuteuduialenanantatameacanesanke
Appendix A [Decision of the United States District
Court for the Northern District of Indiana (August
gg) SBR Rp da ROAD POO ROE ST RONEN STOR LET OT
Appendix B [Decision of the United States Court of
Appeals for the Seventh Circuit (July 18, 1980) ]........
Appendix C [Order of the United States Court of
Appeals for the Seventh Circuit denying rehearing en
banc, and opinions dissenting therefrom (November
PIII alt caiest ss co Ac akaeoacenuase Pongesaadvunieessasvenaganbbanceiniaa
ill
TABLE OF AUTHORITIES CITED
Cases.
PAGE
Allee v. Medrano, 416 U.S. 804 (° 974) .ecceceeeeeees 18,19
Brinegar v. United States, 338 U.S. 160 (1949)...... 23
Cupp v. Murphy, 412 U.S. 291 (1973 )....ccccceeeeeeee 14
Davis v. Mississippi, 394 U.S. 721 (1969) «0... eee 16
Doe v. Renfrow, 631 F.2d 91 (7th Cir. if re passim
Doe v. Renfrow, 475 F.Supp. 1012 (N.D.Ind.
BT Yo ccsisp sits sxacasicsrncatvstastabinvnssaswenccivcuiennserssensanenbes passim
Goss v. Lopez, 419 U.S. 565 (1975) c.ccsesseeseseesseesees 17,18
In re Gault, 387 U.S. 1 (1967) .......ccecseseceeeeeeeeeeeees 18
Jones v. Latexo Independent School District, 499
F.Supp. 223 (E.D.Tex. 1980)... cseseceeeeeeteeees 19, 20
M.M. v. Anker, 477 F.Supp. 837 (E.D.N.Y.),
affirmed, 607 F.2d 588 (2d Cir. 1979) .....seeeeeeees 17
Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) ..... 16
Terry Vv. Ohio, 392 U.S. 1 (1968)... .eeeseeeereeeseeseerees 16
Tinker v. Des Moines Independent School District,
SOS US, SOS CT OGGY vsccviccrcesccsvssscrecsrscassnerssenvorssenss 17
Torres v. Puerto Rico, 442 U.S. 465 (1979).........00 16
United States v. Kenaan, 496 F.2d 181 (1st Cir.
PF ia goccscscusciapensbasssssvnascnctdaxsennaniasverenaviinmeesvien sounds 14
West Virginia Board of Education v. Barnette, 319
TD, GIG CIDGI) crsssecrveccocvecesnersnssesvserveennvevvsnvesssess 18
Wood v. Strickland, 420 U.S. 308 (1975) ......::eseeeee 13,17
Ybarra Vv. Illinois, 444 U.S. 85 (1979) v.eeeeeeeeeeeees 16
Constitutional Provisions
U.S. Constitution, Amendment I ...............cceeeeeeeeeeees 17
U.S. Constitution, Amendment IV .............:::::eeee passim
U.S. Constitution, Amendment V..........:::::cceeeeeees 2, 10, 17,
23
U.S. Constitution, Amendment XIV ............:::eeeeeee 3, wa 4,
PAGE
Rules.
Federal Rules of Appellate Procedure, Rule 41(b) 11
Federal Rules of Civil Procedure, Rule 23(b)(2).. 4, 18,19
Federal Rules of Civil Procedure, Rule 25(d)(1).. 5
Statutes.
Civil Rights Act of 1871, § 1, 42 U.S.C. § 1983....... 3, 10
Civil Rights Act of 1871, §2(3), 42 U.S.C.
Sr ce vaamaenab wens 3,10
Judiciary Act, § 1254, 28 U.S.C. § 1254.00... 2
Other Materials.
Helfer, ““Search and Seizure in Public Schools: Are
Our Children’s Rights Going tc the Dogs?” 24
St. Louis University Law Journal 119 (1979)...... 20
Comment, “The Constitutionality of Canine
Searches in the Classroom,” 71 Journal of Crim-
inal Law and Criminology | (1980 )...........::00000008 20
IN THE
Supreme Court of the United States
OCTOBER TERM, 1980
DIANE DOE, sy ROBERT DOE AND NAOMI DOE, HER PARENTS
AND NEXT FRIENDS,
Petitioner,
vs.
OMER RENFROW, INDIVIDUALLY AND AS SUPERINTENDENT
OF SCHOOLS OF THE HIGHLAND COMMUNITY SCHOOL CoRPO-
RATION; GEORGE KURTEFF, INDIVIDUALLY AND AS PRIN-
CIPAL OF HIGHLAND SENIOR HIGH SCHOOL; HARVEY
KEIM, INDIVIDUALLY AND AS PRINCIPAL OF HIGHLAND Ju-
NIOR HIGH SCHOOL; JOHN GUIDEN, LORRAINE KING,
LAWRENCE VASSER, BURTON MASEPOHL, AND
JOHN TERPSTRA, INDIVIDUALLY AND AS MEMBERS OF THE
BOARD OF TRUSTEES OF THE HIGHLAND COMMUNITY SCHOOL
CORPORATION; NOEL HALL, AS A MEMBER OF THE BOARD OF
TRUSTEES OF THE HIGHLAND COMMUNITY SCHOOL CORPO-
RATION; AL PRENDERGAST, INDIVIDUALLY, AS CHIEF OF
POLICE OF HIGHLAND, INDIANA, AND AS A MEMBER OF THE
BOARD OF TRUSTEES OF THE HIGHLAND COMMUNITY SCHOOL
CORPORATION: JAMES TUROCI, as CHIEF OF POLICE OF
HIGHLAND, INDIANA; AND PATRICIA LITTLE, INDIvID-
UALLY AND AS DEPUTY SHERIFF OF MIAMI COUNTY, INDIANA;
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
To THE CHIEF JUSTICE OF THE UNITED STATES AND THE ASSOCI-
ATE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES:
Petitioner, Diane Doe, by Robert Doe and Naomi Doe,
her parents and next friends, respectfully prays that a writ of
certiorari be issued to review the decision in this case of the
United States Court of Appeals for the Seventh Circuit.
OPINIONS BELOW
The opinion of the United States District Court for the
Northern District of Indiana is reported at 475 F. Supp. 1012
(N. D. Ind. 1979). The opinion of the United States Court of
Appeals for the Seventh Circuit is reported at 631 F. 2d 91 (7th
Cir. 1980). Opinions of four judges of the court of appeals
dissenting from the denial of rehearing are also reported at 631
F. 2d 91, 93-95 (7th Cir. 1980). All opinions are reproduced in
the Appendix hereto.
JURISDICTION
The judgment of the court of appeals was entered on July
18, 1980. The timely application of appellees below, Respond-
ents here, for rehearing was denied on August 1, 1980. The
timely application of appellant below, Petitioner here, for
rehearing, and her suggestion for rehearing en banc, were
denied by an evenly-divided Seventh Circuit on November 3,
1980. The jurisdiction of this Court is invoked pursuant to 28
U.S.C. § 1254.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fourth Amendment to the United States Constitution
provides as follows:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
The Fifth Amendment to the United States Constitution
provides, in pertinent part, as follows:
No person shall ... be deprived of life, liberty, or
property, without due process of law....
The Fourteenth Amendment to the United States Con-
stitution provides, in pertinent part, as follows:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protec-
tion of the laws.
Section 1 of the Civil Rights Act of 1871, 42 U. S. C.
§ 1983, provides as follows:
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of a State of Territory,
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction there-
of to the deprivation of any rights, privileges, or immu-
nities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
Section 2(3) of the Civil Rights Act of 1871, 42 U.S. C.
§ 1985(3), provides, in pertinent part, as follows:
If two or more persons in any State or Territory
conspire or go in disguise on the highway or on the
premises of another, for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws; or for the purpose of pre-
venting or hindering the constituted authorities of any
State or Territory from giving or securing to all persons
within such State or Territory the equal protection of the
laws; ... in any case of conspiracy set forth in this section,
if one or more persons engaged therein do, or cause to be
done, any act in furtherance of the object of such con-
spiracy, whereby another is injured in his person or
property, or deprived of having and exercising any right or
privilege of a citizen of the United States, the party so
injured o: deprived may have an action for the recovery of
damages, occasioned by such injury or deprivation, against
any one or more of the conspirators.
Rule 23 of the Federal Rules of Civil Procedure provides,
in pertinent part, as follows:
(a) One or more members of a class may sue or be
sued as representative parties on behalf of all only if (1)
the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact
common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses
of the class, and (4) the representative parties will fairly
and adequately protect the interests of the class.
(b) An action may be maintained as a class action if
the prerequisites of subdivision (a) are satisfied, and in
addition:
** k *
(2) the party opposing the class has acted or refused
to act on grounds generally applicable to the class, thereby
making appropriate final injunctive relief or corresponding
declaratory relief with respect to the class as a whole. ..
STATEMENT OF THE CASE
Petitioner is a thirteen-year-old girl enrolled as a student at
Highland Junior High School in Highland, Indiana. Respond-
ents are the superintendent, board of trustees, high school
principal, and junior high school principal of the Highland
Community School Corporation; the chief of the Highland
Police;! and a Miami County, Indiana, deputy sheriff.
The conduct at issue in this case consisted of a shakedown,
dragnet inspection of the persons of all students present at the
Highland senior and junior high schools on March 23, 1979.
The purpose of the warrantless search was “‘to see if there were
any drugs present” in the Highland schools and, ‘f so, to punish
those who possessed them and to deter others from bringing
them in. (Tr. 104).2
The search process was carried on jointly by Highland
police and school officials. It began with the mass detention of
every child in the two schools and on the campus which
surrounds them. Detention was followed by the subjection of
every student, individually, to the scrutiny of trained police
dogs. The dogs and their handlers, consisting of non-police
1 At the time of the Highland schoolhouse raid, and at the time of
the evidentiary hearing below, Al Prendergast was chief of the
Highland police and James Turoci was a lieutenant of the Highland
police in charge of the youth division. Mr. Prendergast has since
retired from the police department, and has been succeeded in office
by Mr. Turoci. Pursuant to Rule 25(d)(1) of the Federal Rules of
Civil Procedure, Mr. Turoci has been joined as a Respondent to this
petition. John Guiden and Lorraine King have left the Highland
school board since the raid, and have been succeeded in office by
Noel Hall, now also joined under F.R. Civ. Pro. Rule 25(d)(1), and
by Mr. Prendergast, now joined additionally in his new official
capacity.
2 An evidentiary hearing, variously characterized by the district
court as a “hearing on a preliminary injunction” and as a “trial on the
merits,” was held, without a jury, on June 7, 1979. References to
pages of the transcript of that hearing are signaled by “Tr.”
personnel and off-duty police officers all from outside the
Highland community, were supplied and led by Respondent
Patricia Little. She is a deputy sheriff of the Sheriff's Depart-
ment of Miami County, Indiana, and the owner of the Edel-
heim Police Canine Academy of Bunker Hill, Indiana.
3 Mrs. Little is engaged in the business of training police dogs for
the purposes of attack, tracking, and detecting marijuana. (Tr. 277).
She provides, upon request, dogs and personnel for the conduct of
drug searches in schools (Tr. 295). During academic year 1978-1979,
she participated in 26 such searches at public schools in Indiana and
at the Michigan City and Pendleton Prisons and has undertaken such
searches in 29 counties throughout the State of Indiana. (Tr. 295,
306). Whenever she is asked to provide dogs and personnel for
school drug raids, she always takes part herself. (Tr. 296). She will
provide dogs and personnel for such searches only upon the request of
law enforcement agencies, and she has refused direct requests for the
conduct of drug raids from school authorities, referring them instead
to their own local enforcement agencies with the suggestion that the
law enforcement bodies contact her. (Tr. 297). In this case, Mrs.
Little was engaged by the Highland Police Department, and she
presided over the initial planning session for the Highland school raid
on March 14, 1979, at Highland Police Headquarters. (Tr. 162-163).
Mrs. Little took an authoritative lead at that meeting, giving specific
instructions to those present concerning, among other things, the
execution of nude, or “strip”, searches of students. (Tr. 252).
When engaged in matters relating to the conduct of drug raids in
schools, Mrs. Little frequently wears a police-type poplin jacket
displaying two badges. One badge reads “Police Canine”, and the
other features the legend ‘“Edelheim Canine”. Her uniform also
incorporates a patch bearing a likeness of the flag of the United
States. (Tr. 163, 308). When she attended the March 14, 1979,
meeting at Highland Police Headquarters, she was garbed in this
police uniform and she sported a sidearm. (Tr. 163).
Mrs. Little, wearing her police uniform, was present in the
Highland schools for the entire operation on the day of the raid. She
was accompanied by sixteen dog-handlers, some of whom were off-
duty law enforcement officials from other jurisdictions. Also present
were Al Prendergast, the then-incumbent chief of the Highland police;
James Turoci, then the youth officer, and now the successor chief, of
the Highland police; fourteen uniformed Highland police officers; and
a uniformed, female Indiana conservation officer.
~ ed
The dogs signaled alerts to their handlers by a means
which was known to Mrs. Little and the handlers, but which
they did not reveal to the other school and police authorities.
(Tr. 253). Such alerts were deemed to indicate the presence of
marijuana on or about the person or possessions of the student
then being scrutinized, and the dog-handlers announced to the
children and to the school and police authorities that alerts had
been signaled. (Tr. 267). _
Every student with respect to whom a dog alerted was
compelled to submit to further, more extensive personal
searches and interrogation, including patdowns and the empty-
ing of pockets, in the cases of male students, and the emptying
of purses, in the cases of female students. (Tr. 267). The dog-
handlers decided when and if students would be required to
remove their clothing and submit to body searches in the nude;
in the presence of teachers, students, and newsmen, the dog-
handlers announced their decisions, and such decisions were
reviewed by no one. (Tr. 267-268 ).4
During the raid, police officers interrogated the students
designated by the dog-handlers, subjected them to pocket,
purse, and similar searches, and, in several cases, subjected
them to nude searches. (Tr. 59-61).
By the end of the day, approximately 2,780 young people
in the Highland schools had been subjected to the dog-search
procedure. The dogs alerted about 20 times to students at the
junior high school and about 30 times to students at the senior
high school. No junior high school students were found in
possession of contraband. The raiders found 17 high school
4 The dog-handlers entrusted with this authority included a gun
shop owner, a trailer-maker, a food store clerk, a dairy farmer and his
son, a housewife and her son, and two men whose occupations and
qualifications are completely unknown. (Tr. 290-292). Also counted
among the handlers were deputy sheriffs from Fulton, Lake, and
Starke Counties in Indiana, police officers from LaPorte and Merrill-
ville, Indiana, and an Indiana conservation officer. ( Tr. 284-287, 289-
290).
students in possession of materials initially thought to be illicit.
All were immediately and summarily suspended. Fifteen of
them were subsequently recorded as having withdrawn from
school voluntarily; the other two students were reinstated, and it
appears that they had been wrongly accused of possessing illicit
drugs. The contraband uncovered by the police dogs and their
handlers consisted of marijuana, paraphernalia suspected of use
in marijuana consumption, and three cans of beer. The dogs
were not trained to detect beer. (Tr. 99, 121, 131-132, 202-210.
227).5
Petitioner was among the Highland students subjected to
the full array of search procedures. She went to school, as
usual, on March 23, 1979. Her first-period class at the junior
high school, consisting of one teacher and about 28 students.
convened at 8:20 a.m. Its normal time of adjournment was 9:15
a.m.; on that day, however, it did not end until about 11:05 a.m.
(Tr. 57, 83, 141).
When the usual time of adjournment was reached that
morning, the teacher informed Diane Doe and her classmates
that the class would be held over because the school had a
“surprise” for the students. The students were told to do school
work or mathematical puzzles or to rest quietly. Throughout
the morning, no one was allowed to leave the room or to go to
the washroom. (Tr. 57-59).
At some time after 9:15 a.m., there arrived at the door of
the classroom a German shepherd dog, a dog-handler, two
uniformed Highland police officers, and an assistant principal
‘Far from being “inherently suspect” as a hot-bed of drug
trafficking, the Highland senior and junior high school campus seems
remarkably sedate in light of the draconian remedies pursued by the
police and school authorities. The fifteen students who were found
with marijuana, paraphernalia, and beer during the Highland raid
barely accounted for one-half of one percent of the student population
of 2,780. Highland school officials concede that drug abuse conditions
in their school are about the same as, and are possibly better than,
those prevailing elsewhere. (Tr. 125-126, 134-135).
9
of the junior high school. The dog, accompanied by the police
and school authorities, entered the room and proceeded from
desk to desk and from student to student. Each student was
probed, muzzled, and sniffed by the dog and visually inspected
by the handler. (Tr. 59-61). When the dog reached Diane
Doe. who was sitting in her assigned seat, it sniffed her body
with its nose and repeatedly pushed its nose and its muzzle into
her legs. (Tr. 59-61, 159). A uniformed police officer ordered
Petitioner to stand up and to empty her pockets. The dog-
handler walked the canine to the girl’s side, and caused the dog
to sniff her again. (Tr. 61). A uniformed police officer
thereupon ordered her to go to the school nurse’s office, to
which she was escorted by a male teacher. (Tr. 65-66).
At the nurse’s office, Diane Doe was handed over to a
uniformed female police officer and to another woman, not a
school employee, who turned out to be a family acquaintance.
The two adult women commanded Petitioner to remove all of
her clothing, and the girl complied, taking off her clothes in the
presence of the women. The women looked over her body,
touched and examined her hair, and inspected her clothing, all
while the girl was completely or partially nude. She was
eventually allowed to replace her clothing, and she was es-
corted back to her classroom. She returned to class about one-
half hour after she had been taken from it. (Tr. 66-70).
No contraband of any kind was ever found in Diane Doe’s
possession, nor was Petitioner ever determined to be, or even
suspected of being, under the influence of any drug or stimu-
lant. (Tr. 66-70). Mrs. Little admitted at the trial that she
could not justify why Diane Doe was subjected to a nude
search. (Tr. 303).
Diane Doe’s testimony showed that she was shocked by
the appearance and presence of the dog in her classroom. She
was embarrassed by being singled out for repeated examination
and for repeated sniffing by the dog, and by being singled out
and commanded to report to the nurse’s office under escort.
10
She was also embarrassed by being required to remove all of
her clothing in the presence of a stranger, the uniformed police
officer, and of a family acquaintance, and to be touched and
examined by them while she was naked. Further, she was
embarrassed and humiliated upon her return to the classroom
by the excited curiosity, comments, and jokes of her fellow
students, and by being made the subject of discussion by
classmates and the community.6 The entire event angered,
humiliated, and degraded her. (Tr. 60, 63, 72-75, 87).
This action was brought under the Fourth, Fifth, and
Fourteenth Amendments, 42 U. S. C. § 1983, and 42 U.S. C.
§ 1985(3), seeking a declaratory judgment holding such con-
duct violative of the United States Constitution; injunctive relief
on behalf of the class of Highland students; and damages on
behalf of Petitioner and her parents.
The district court refused to certify the class and upheld the
constitutionality of all aspects of the dog-search procedure
except the nude searches. The district court granted declaratory
judgment holding the strip-search of Petitioner uncon-
stitutional, but denied damages for it on the ground that, as a
matter of law, the unconstitutionality of such searches was not
so well-settled a principle of law that the school and police
authorities should be held accountable thereunder.
Petitioner appealed to the United States Court of Appeals
for the Seventh Circuit from all aspects of the trial court’s
decision, except for its award of declaratory relief against the
nude searches. Respondents took no appeal.
The panel of the court of appeals affirmed the trial court’s
opinion by adopting it, save on the issue of damages for the
nude search. The panel there reversed the lower court, holding
that, as a matter of law, the strip-searches were so patently
unconstitutional and ‘ta violation of any known principle of
6 Representatives of the press and other news media, invited in
by the authorities, entered the schoolhouses and classrooms during the
raid and observed the searches while in progress. (Tr. 191-192).
11
human decency” that liability for damages must attach, at least
as against the school authorities. Doe v. Renfrow, 631 F. 2d 91,
93 (1980), App. at 4b. The panel ordered the case remanded
to the trial court for a determination of damages.7
Respondents petitioned the court of appeals for rehearing,
asking the Seventh Circuit to state explicitly whether or not the
Highland police authorities shared equally in the liability of the
school authorities to respond in money damages. Respondents’
application for rehearing was denied without opinion on August
1, 1980.
Petitioner also applied for a rehearing in the court of
appeals, and suggested that the rehearing be held en banc.
Rehearing was denied to Petitioner on November 3, 1980, by
an evenly-divided court of appeals. Opinions dissenting from
the order denying the petition for rehearing were filed by Chief
Judge Fairchild and Judges Swygert, Wood, and Cudahy.
Their dissents from the denial of rehearing are reported with
the panel’s per curiam opinion at 631 F. 2d 91, and are
contained in the appendix hereto at 2c-6c.
Petitioner here seeks review of the judgment of the court of
appeals that the dragnet, dog-search procedure was con-
stitutional and of the refusal of the court of appeals to grant
declaratory and injunctive relief to the class of Highland High
School and Junior High School students against such conduct.
Petitioner requests that a writ of certiorari be issued to the court
of appeals, so that this Court may review the decision of that
divided tribunal.
7 Petitioner has moved the court of appeals, pursuant to Rule
41(b) of the Federal Rules of Appellate Procedure, to stay the
issuance of its mandate pending the disposition of this Petition, and
thus to diminish the likelihood of multiple trials on damages. The
court of appeals granted the stay on November 17, 1980. On
November 13, 1980, the mandate issued improvidently, and was
recalled by the court of appeals, acting sua sponte, on November 25,
1980. The stay was renewed on December 17, 1980, and again on
January 7, 1981, pending the filing of this Petition.
12
REASONS FOR GRANTING THE WRIT
I.
This Case Involves Questions of
Exceptional Importance.
This is a case where local police and school officials
resorted to governmental terrorism in the name of deterring
drug abuse. Thousands of American public schoolchildren
were detained en masse in their schoolhouses, without any
articulable basis for any suspicion that any wrong of any kind
had been committed by anyone. Without warning, and without
warrants, they were subjected to personal searches by police
dogs, pocket searches and interrogations by police officers, and,
for some children, strip-searches by police personnel. All of this
conduct, save for the nude examinations themselves, was
undertaken in the presence of print reporters and television
newsmen, so to dramatize the lesson in terrorem. This case
presents a ripe opportunity for review by this Court of a
troubling police and school practice growing in frequency and
significance.
The opinion of the pane! of the court of appeals ignores the
search and seizure, detention and arrest, and class-certification
questions that the facts here beget. Instead, it affirms with
minimal comment the trial court’s opinion on those points,
which it adopts as its own.
Yet, at the same time, the panel’s opinion departs vigor-
ously from the district court’s decision on the matter of dam-
ages. It does so in terms that are unusually forceful, clearly
undercutting the authority in which the court of appeals
cloaked the remainder of the trial court’s opinion on the
constitutionality of the overall search procedure:
It does not require a constitutional scholar to conclude
that a nude search of a 13-year-old child is an invasion of
constitutional rights of some magnitude. More than that: it
13
is a violation of any known principle of human decency.
Apart from any constitutional readings and rulings, simple
common sense would indicate that the conduct of the
school officials in permitting such a nude search was not
only unlawful but outrageous under “settled indisputable
principles of law” [ Wood v. Strickland,| (420 U.S. [308]
at 321, 95 S. Ct. [992] at 1000 [1975].
Wood v. Strickland, {420 U. S. 308 (1975)], accords
immunity to school officials who act in good faith and
within the bounds of reason. We suggest as strongly as
possible that the conduct herein described exceeded the
‘bounds of reason” by two and a half country miles. It is
not enough for us to declare that the little girl involved was
indeed deprived of her constitutional and basic human
rights. We must also permit her to seek damages from
those who caused this humiliation and did indeed act as
though students “shed at the schoolhouse door rights
guaranteed by *** any *** constitutional provision”
({ Doe v. Renfrow,| 475 F. Supp. [1012,] at 1023).
Doe v. Renfrow, 631 F. 2d 91, 92-93, App. at 4b, (7th Cir.
1980) (emphasis in original).
It seemed to the police and school officials who perpetrated
the raid on March 23, 1979, and to the trial court, that the
progression from mass detention to dog-sniffing to interrogation
to pocket searches to nude searches was natural and logical,
shaded only by degrees. The panel of the court of appeals saw,
but could not explain, a sharp differentiation which escaped
both the perpetrators and the trial court. In fact, conduct of the
kind undertaken by the Highland authorities probably does
progress with a logic of its own, each step eliding into the next.
Petitioner concurs with the panel that a clear line must be
drawn, but respectfully submits that the line should properly
fall before even the mass detention begins.
The trial court, in that part of its opinion which was
adopted by the panel of the court of appeals, held that,
“this is not a police action and ... the students did not
have a justifiable expectation of privacy that would pre-
14
clude a school administrator from sniffing the air around
the desks with the aid of a trained drug detecting canine.
The use of the dog in this operation was an aid to the
school administrator and as such its use is not considered a
search.”
Doe v. Renfrow, 475 F. Supp. 1012, 1022, App. at 16a-17a, (N.
D. Ind. 1979). It is by such reasoning that the trial court and
the court of appeals would take the whole schoolhouse raid,
right up to the nude search, entirely out of the ambit of the
Fourth Amendment.
Such a conclusion represents a grave perversion of con-
stitutional doctrine. Judge Swygert was direct in his dissent
from the denial of rehearing:
In my view, the circumstances of March 23 can hardly be
likened to the observation of a school administrator,
sniffing the air about him as he goes about his business.
Here there was evidence that the trained dogs ran their
noses along pupils’ legs, actually touching the bodies of the
students.
The cases cited by the district court as holding that
sniffing dogs do not constitute a search are totally in-
apposite because in those cases the dogs were sniffing
inanimate and unattended objects rather than people.
Here the intrusive probings by the dogs were in no sense
mere observation of ‘ ‘physical characteristics ... con-
stantly exposed to the public,’ ... [but] constituted the
type of ‘severe, though brief, intrusion upon cherished
personal security’ that is subject to constitutional scrutiny.”
Cupp v. Murphy, 412 U. S. 291, 295, 93 S. Ct. 2000, 2003,
36 L. Ed 2d 900 (1973) (citations omitted). See also
United States v. Kenaan, 496 F. 2d 181 (Ist Cir. 1974).
We need not speculate afar about the psychological
trauma suffered by the students during this mass search.
The accusing finger of the police may well remain for a
lifetime upon these young, impressionable minds.
Had a warrant properly been sought, I am convinced
that none could have issued consistent with the Fourth
Amendment. The police and school officials neither
possessed nor attempted to gain specific information about
15
any particular student. There was also no information as
to any particular drug or contraband transaction or event.
Thus. all 2.780 students were under suspicion, and there
was no known crime.”
Doe v. Renfrow, 631 F. 2d 91, 94, App. at 3c-4c, (7th Cir.
1980) (Swygert, J., dissenting from denial of rehearing).
Whatever the proper rules may be, police and school
authorities, as well as parents and children, in numerous
jurisdictions across the country seek guidance on the problems
addressed in this case. The fundamental question, in practical
terms. is how far may police and school authorities go in
undertaking joint, exploratory, schoolhouse searches of students
detained en masse? It appears to be the conclusion of the court
of appeals that anything is permissible, provided that clothing is
not removed. Petitioner contends that such a sweeping rule
would run afoul of the Constitution and of the teachings of this
Court thereunder. Those arguments are raised infra. But such
a rule. announced as in the panel’s opinion—the dog raids
quietly upheld, the strip searches angrily rejected—confuses
rather than settles the issues which the rule purports to address.
Wherever the line is ultimately to be drawn, the problem merits
a full airing of issues, a clear explanation for the results, and
settlement by this Court.
The Judgment of the Court of Appeals
Conflicts With Decisions of This Court.
A. Search and Seizure Issues.
The panel of the court of appeals upheld, through partial
adoption of the trial court’s opinion, the constitutionality of a
pattern of warrantless detentions and personal intrusions by
police and school authorities based solely on the location and
class-identity of the mass of persons searched. Highland’s
students were detained and inspected en masse solely because
16
they were schoolchildren in a schoolhouse. There was no
suspicion whatsoever that a crime had been, was being, or was
about to be committed. No suspicious conduct was observed.
The search was purely a dragnet, with no pretense of neutrality
and no effort to conform to inspectional criteria of any kind.
Highland’s authorities executed a plan with no deliberate
purpose save to see what a search of the student body might
disclose.
Petitioner respectfully submits that such conduct is uncon-
stitutional under the teachings of this Court. In Terry v. Ohio,
392 U.S. 1 (1968), the Court held that specific and articulable
facts leading to suspicion of wrongdoing by a particular person
at a particular time are necessary to justify intrusion into his
security or privacy. In Davis v. Mississippi, 394 U. S. 721
(1969), a case involving a crime whose perpetrator was known
to be a black male, this Court struck down an arrest which
followed upon the mass detention of black men, more or less
conforming to the description of the suspect, found in the
general area of the crime. In Ybarra v. Illinois, 444 U.S. 85
(1979), the Court held unconstitutional the mass investigatory
detention, interrogation, and search by police of all patrons ina
bar suspected of being a venue for illicit drug trafficking. In
Marshall v. Barlow’s, Inc., 436 U. S. 307. 312 (1978), this
Court held that even “health and safety,” as opposed to
“criminal,” inspections are subject to the warrant requirements
of the Fourth Amendment, and must be based on a “plan
containing specific neutral criteria.” In Torres v. Puerto Rico,
442 U.S. 465, 474 (1979), this Court declared that ‘“‘we have
not dispensed with the fundamental Fourth Amendment prohi-
bition against unreasonable searches and seizures simply be-
cause of a generalized urgency of law enforcement.”
The trial court attempted to minimize the Significance of
police participation in the Highland raid, Suggesting that,
17
school officials can secure proper aids to supplement and
assist basic human senses. In doing so, it should be
emphasized that the defendants proceed as school officials
and not, per se, as policemen. * * * In the execution of this
plan, the school officials sought the aid of other trained
persons who had relevant talents from various community
sources. Various police departments were one such re-
source. Ms. Little with her vast experience in the training
of dogs was another resource.
Doe v. Renfrow, 475 F. Supp. 1012, 1026, App. at 26a, (N. D.
Ind. 1979). As Judge Swygert observed, however, this cannot
be deemed ‘“‘a ‘school’ case because the mass search was
planned and executed with extensive police involvement rather
than solely by school personnel.’’Doe v. Renfrow, 631 F. 2d 91,
94, App. at 4c, (7th Cir. 1980) (Swygert J., dissenting from
denial of rehearing). Judge Swygert correctly noted, however,
that,
even considered in the context of “school” cases, there was
no reasonable suspicion here to justify the mass search.
See M. M. v. Anker, 477 F. Supp. 837 (E. D. N. Y.), aff’,
607 F. 2d 588 (2d Cir. 1979). Nor was the constitutional
violation abrogated by the fact that the police did not plan
any arrests. The Fourth Amendment protects against
unreasonable searches and seizures because of “the right of
the people to be secure in their persons” whether or not an
arrest would necessarily follow.
Doe v. Renfrow, 631 F. 2d 91, 94, App. at 4c, (7th Cir. 1980)
(Swygert, J., dissenting from denial of rehearing).
This Court has held repeatedly that students do not shed
their constitutional rights at the schoolhouse door. School
authorities, when acting in conjunction with the police, and
even when acting within the scope of their own governmental
authority, may neither abridge nor waive the rights of students
guaranteed under the First Amendment, Jinker v. Des Moines
Independent School District, 393 U.S. 503 (1969), or under the
Due Process Clauses of the Fifth and Fourteenth Amendments,
Wood v. Strickland, 420 U. S. 308 (1975); Goss v. Lopez, 419
18
U. S. 565 (1975); In re Gault, 387 U.S. 1 (1967); and West
Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
The court of appeals would reshape the body of this Court’s
teachings regarding the fundamental rights of students, and
would except rights guaranteed by the Fourth Amendment
from the body of elemental human rights against unwarranted
governmental intrusions.
B. Class-Certification Issues.
The trial court and the court of appeals denied the class-
certification proposed below by Petitioner under Rule
23(b)(2) of the Federal Rules of Civil Procedure. Petitioner
proposed a class consisting of “the 2,780 persons who, during
academic year 1978-1979 were enrolled as students at Highland
High School and at Highland Junior High School in Highland,
Indiana; all persons who were subject to the detention, custody,
arrest, search, and seizure by school and police authorities at
said schools on March 23, 1979; and all persons who now are,
or who hereafter shall be, enrolled as students in said schools.”
See Plaintiffs’ Proposed Findings of Facts, Conclusions of Law,
and Decree at 27 (July 16, 1979).
The trial court held that,
[t]}hose members of the proposed class are not so numer-
ous as to make joinder of them as parties inpracticable.
Fifty students were alerted to by the drug detecting canines
on the morning in question. * * * It is also very clear from
the record that some students in this high school are not in
sympathy with the claims and contentions of this plaintiff.
This Court finds that joinder would have been permissible.
Doe v. Renfrow, 475 F. Supp. 1012, 1028, App. at 30a, (N. D.
Ind. 1979).
This Court has long recognized that class-certification
under Rule 23(b)(2) is a device intended to provide class relief
in civil rights cases. See Allee v. Medrano, 416 U. S. 804
(1974), a case in which the Court approved class injunctive
19
relief against a potentially recurring pattern of police mis-
conduct.
The contours of the present class are determined by the
actions, past and present, of the school and police authorities.
Highland’s law enforcement and public school officials have
targeted the senior and junior high school population of their
town for a concerted program of custody, detention, and
searches in connection with schoolhouse drug raids utilizing
drug-detecting dogs. As the raid program is pursued by its
perpetrators, they define, by their own conduct, a class of
victims worthy of certification under Rule 23(b)(2). The
foreclosure of class relief by the lower courts defeats the
intentions of the framers of Rule 23(b)(2), and ignores the
reading given to that Rule by this Court in decisions such as
Allee v. Medrano, supra.
Petitioner respectfully requests, therefore, that a writ of
certiorari be issued to the court of appeals in order to secure the
conformity of the judgments of the lower tribunals with the
teachings of this Court.
Review by This Court Will Secure
Uniformity of Decisions Among the Lower Courts.
On September 3, 1980, the United States District Court for
the Eastern District of Texas decided Jones v. Latexo Indepen-
dent School District, 499 F. Supp. 223 (E. D. Tex. 1980). That
case involved facts nearly identical to those present here, save
that no nude searches were undertaken in Texas. In that case,
Chief Judge Justice considered and rejected the holding below
in the case at bar:
The only case decided to date on facts even remotely
resembling those now before the court is Doe v. Renfrow,
475 F. Supp. 1012 (N. D. Ind. 1979) (appeal pending).
The court’s approval of a blanket high school sniff-search
20
in that case stemmed from an errcaeous view that the dog
merely augmented or enhanced school officials in their own
inspection of the school. Jd. at 1022. As noted above,
however, a “sniffer dog” actually perceives odors undetec-
table to humans, much as an electronic listening device
picks up sounds inaudible to the human ear. Doe v.
Renfrow has been justifiably criticized by legal writers on
this and other grounds. See “The Constitutionality of
Canine Searches in the Classroom”, 71 Journal of Criminal
Law & Criminology | (1980); Helfer, “Search and Seizure
in Public Schools: Are Our Children’s Rights Going to the
Dogs?”’, 24 St. Louis U. L. J. 119 (1979).
Jones v. Latexo Independent School District, supra, 499 F.
Supp. at 236. The result in the Texas case included the issuance
of an injunction prohibiting local authorities from using “sniffer
dogs” to search the persons or property of the plaintiffs in the
absence of reasonable cause to believe that those particular
individuals were in possession of contraband in violation of
school rules.
In light of the conflicting results reached in Doe v. Ren-
frow, supra, and Jones v. Latexo Independent School District,
supra, the law regarding the constitutionality of mass school-
house detentions, combined with drug searches led by police
dogs, is perilously muddled. Two district courts have spoken in
diametric opposition to one another. A court of appeals, which
is evenly divided on granting rehearing en banc, has entered a
panel decision containing anguished internal inconsistencies.
The present case raises constitutional questions which are
plainly substantial and ripe for decision. Their resolution by
this Court will end the conflicts below, and will give vital
guidance forestalling the abuses, injuries, and lawsuits which
otherwise, inevitably, will come.
21
IV.
The Judgment of the Court of Appeals Misapprehended
Significant Facts of the Case, Thereby Working Substantial
Injustice.
The per curiam opinion of the panel of the court of appeals
states that, on August 30, 1979, “Judge Sharp dismissed the
action on the merits as to the Highland police chief and dog
trainer Patricia Little because they did not participate in the
strip search.” Doe v. Renfrow, 631 F. 2d 91, 92, App. at 2b,
(7th Cir. 1980 )( per curiam). The trial court granted summary
judgment in favor of Mrs. Little and the Highland police chief
on the strength of its finding that they had not participated in
any way with the individual strip-search of Petitioner. Doe v.
Renfrow, 475 F. Supp. 1012, 1027, App. at 28a, (N. D. Ind.
1979).
The trial court’s finding is clearly erroneous. Patricia Little
is more than a mere “dog-trainer’. She is a deputy sheriff of
Miami County, Indiana, ( Tr. 276); she trained and supplied the
police dogs used in the Highland raid, (Tr. 277, 290-292); she
helped to plan the Highland raid and was present during it,
(Tr. 162-163, 187-188, 242); she wore a police uniform and
carried a sidearm during those events, ( /bid. ); she supplied and
led all of the dog-handlers for the raid, (Tr. 110, 265, 278-290);
and she gave the instructions which controlled the execution of
the entire raid, including the strip-searches, (Tr. 252).
What is more, each decision to strip-search a particular
student was made by Patricia Little and her dog-handlers. (Tr.
253, 267). The decision was communicated by them to the
subordinates of the chief of police, and by the police officers to
the students. (Jbid). Thus, Diane Doe was ordered to submit
to a strip-search by a police officer. (Tr. 65-66). The nude
search of Petitioner was actually conducted by a police officer
(a female subordinate of the chief of police) and by another
woman brought in for that purpose by the police. (Tr. 66-70).
In addition, both the then-incumbent and the current chiefs of
22
police, along with numerous subordinate police officers, took
part in planning the search and were actually present on
campus throughout the drug raid.
Thus, both the police chiefs and Mrs. Little were intimately
involved in the entire proceeding, including, specifically, the
strip-search of Diane Doe. Police as well as school officials
were responsible for the nude search, and they should all be
required to respond in damages for their joint conduct. In
relieving Mrs. Little and the Highland police from liability for
damages, the lower courts have worked substantial injustices
not only against Petitioner, but also against the Highland school
authorities, who are left to stand alone. This Court should
command the Highland police and Deputy Little to stand
responsible for their deeds.
CONCLUSION
The public interest requires enforcement of the laws
against drug abuse. But it would be intolerably destructive of
the fabric of ordered liberty to effect such law enforcement at
the expense of rights safeguarded by the Fourth, Fifth, and
Fourteenth Amendments. The Court and the parties should be
mindful of the words of Mr. Justice Jackson, soon after his
return to the United States Supreme Court from his service as a
prosecutor at the Nuremberg Trials:
These [Fourth Amendment rights], I protest, are not
mere second-class rights but belong in the catalogue of
indispensable freedoms. Among deprivations of nghts.
none is so effective in cowering a population, crushing the
spirit of the individual and putting terror in every heart.
Uncontrolled search and seizure is one of the first and most
effective weapons in the arsenal of every arbitrary govern-
ment.
Brinegar v. United States, 338 U.S. 160, 180 (1949) (Jackson
J., dissenting ).
23
The public interest requires, therefore, that, with the
exception of the judgment declaring the unconstitutionality of
the nude search of Diane Doe and of the liability of the
Highland school authorities to respond in damages for it, the
decision of the United States Court of Appeals for the Seventh
Circuit should be reviewed upon a writ of certiorari, and should
be reversed.
Respectfully submitted,
JOSEPH A. Morris,
Two First National Plaza,
Chicago, Illinois 60603,
(312) 372-2345,
MYRNA Hart,
Project Justice & Equality,
Valparaiso University
School of Law,
Valparaiso, Indiana 46383,
DaAviID A. GOLDBERGER,
Ohio State University,
College of Law,
1659 North High Street,
Columbus, Ohio 43210,
HARVEY GROSSMAN,
Roger Baldwin Foundation of
ACLU, Inc.,
5 South Wabash Avenue,
Chicago, Illinois 60603,
Counsel for Petitioner.
Chicago, Illinois
February 2, 1981.
APPENDIX
The decision of the United States District Court for
the Northern District of Indiana. (August 30,
DIE FD ciciéskicesshdtcanhisesenuuivisessniansimiessdsnietessmnsbssuaetionuienenes la
The decision of the United States Court of Appeals
for the Seventh Circuit. (July 18, 1980)... lb
The order of the United States Court of Appeals
for the Seventh Circuit denying rehearing en banc,
and opinions dissenting therefrom. (November 3,
PIN Dis ccusicsudesa¥inssgs ussnincdsandsbalaocsaseeieatenpeaccmaaaeeannion lc
la
Diane DOE, by Robert and Naomi Doe,
her parents and next friends,
Plaintiffs,
Vv.
Omer RENFROW, Superintendent of Highland Town School
District, George Kurteff, Principal, Highland Senior High
School, Harvey Keim, Principal of Highland Junior High
School, John Guiden, Lorraine King, Lawrence Vasser,
Burton Masepohl, John Terpstra, members of the Highland
Town School District Board, Al Prendergast, Police Chief,
Highland, Indiana, Patricia Little, Individual Intervenors,
Defendants.
No. H 79-233.
United States District Court,
N. D. Indiana,
Hammond Division.
Aug. 30, 1979.
MEMORANDUM AND ORDER
ALLEN SHARP, District Judge.
I. Introduction
This action was initiated in a complaint filed by several
named plaintiffs protesting certain procedures conducted by
Officials of the Highland, Crown Point and Merrillville, Indiana
school systems. Those named plaintiffs alleged that search
activities conducted by certain school officials assisted by local
police officers violated the plaintiffs’ rights secured by the
Fourth and Fourteenth Amendments to the Constitution.
Subsequent to oral argument and upon the granting of a motion
to dismiss certain party plaintiffs, made by plaintiffs’ counsel,
only Diane Doe and her parents as next friends remain as
plaintiffs in this action. After extensive oral argument and
2a
presentation of evidence on June 7, 1979, this Court dismissed
all but the above captioned defendants. Several hundred
parents or patrons of the Highland School System were per-
mitted to intervene as party defendants.
Plaintiff, Diane Doe, seeks to have the actions of the
defendant school officials, the police chief of the Highland
Police Department and the dog trainer to be declared violative
of her constitutional rights guaranteed by the Fourth and Fifth,
Ninth and Fourteenth Amendments to the Constitution. The
plaintiff further seeks to have the complained of activities of the
named defendants permanently enjoined. Plaintiff brings her
action pursuant to both sections 1983 and 1985 of Title 42
U.S.C. Also requested by plaintiff is a class certification of all
persons who were enrolled at Highland High School and
Highland Junior High School who were subject to the com-
plained of activities or those who would be enroled hereafter as
such students in those institutions. Such a class would be
certified pursuant to F.R.C.P. 23(b)(2). Presentation of any
evidence of possible damages was reserved until this Court’s
determination on the above issues.
Jurisdiction in this matter for purposes of deciding any and
all questions concerning plaintiffs’ request for an injunction
against the named defendants is pursuant to 28 U.S.C.
§§ 1343(3) and 1343(4).
This document shall constitute the Court’s findings and
conclusions of law as required by F.R.C.P. 52.
Il. Facts
At issue in this law suit is the constitutional propriety of an
investigation conducted by administrators of the Highland
school system assisted by local police officers at the Junior and
Senior High Schools in Highland, Indiana.
3a
Highland, Indiana is a community consisting of approxi-
mately 30,000 residents located in the northwest corner of the
state in Lake County, Indiana. The school community of
Highland has, among several elementary schools, a Junior and
Senior High School. Both these campuses are located on the
same site. The school buildings are adjacent to one another
and the approximately 2,780 students of both schools share
common facilities located in the buildings.
Although the problem of illicit drug use within the schools
was not a novel one in Highland before 1978, it became
progressively more acute and more visible within the Senior
and Junior High Schools during the 1978 academic year.
Beginning in the fall of that year, concern over drug use within
the school intensified as school officials recorded instances of
drug use by students. From September 1978 to March 22,
1979, twenty-one instances were recorded when students were
found in possession of drugs, drug paraphernalia or alcohol, or
under the influence of drugs. More alarming to school officials
was the fact that of those twenty-one instances, thirteen oc-
curred within a twenty school day span just prior to the
complained of activities.1 Also, during this four week period,
school administrators received daily reports from faculty, stu-
dents and parents concerning the use of drugs within the Jusior
and Senior High Schools.? Out of these general reports, two
students were identified as drug users, however, after in-
vestigation by school officials, no evidence of any drug use was
found concerning the named students.
1The 13 students involved in drug related incidents were
withdrawn from the school system. Testimony at trial indicated
the students used several types of drugs including alcohol,
marijuana, and PCP, an animal tranquilizer.
2 These reports consisted of direct communication between
teachers at the Junior and Senior High School and school
administrators, either face to face or by signed written notes; by
student tips, usually anonymous, by letters from parents, and by
telephone calls, also, usually anonymous.
4a
Throughout the year, and especially during this four week
period, school officials, teachers and even members of the
student body became concerned about the negative impact the
use Of drugs within the school was having on the educational
environment. Classroom disruptions and the concomitant loss
of learning time occurred as a result of disciplining those
students found to have been using drugs in the school during
the regular school hours. Moreover, there was a feeling, at least
by some students including the plaintiff, that peer pressure
existed in favor of using drugs while on campus. Not to use
drugs was considered not to be “cool” by members of the
student body who did use drugs. Because of the increasing use
of drugs within the school, students, faculty and administrators
suffered a loss of morale at both the Senior and Junior High
School.
To combat what was perceived as an increasingly alarming
drug problem within the school system, members of the High-
land Town Schoo! District Board suggested the use of properly
trained dogs to search for drugs within the school building. The
use Of drug detecting canine units was discussed at the March 6,
1979 meeting of the Board of the Highland Community School
District and Superintendent of Schools, Omer Renfrow. Ren-
frow decided to use the trained dogs in a drug investigation and
he arranged a second meeting for March 14, 1979. This
meeting was attended by school administrators of the Senior
and Junior High Schools and by members of the Highland
Police Department.? Also present at this meeting was Patricia
Little, a trainer of drug detecting canines. Little was asked to
3 Persons in attendance were: George Kurteff, Principal of
Highland High School; Harvey Keim, Principal of Highland
Junior High School; Merlin Clinkenbeard, Assistant Principal of
Highland High School; Al Prendergast, Chief of Police, High-
land Police Department; Lt. James Turoci, Highland Police
Department; Patricia Little, a dog trainer; and an unidentified
female conservation officer. Renfrow was not present.
Sa
attend because she had had experience in the field of canine
searches in schools.4
At this meeting, the school administrators informed the
police officers that they intended to conduct an investigation
within the school buildings using canine units to detect and
remove any narcotics or narcotic paraphernalia. To carry out
this procedure, they requested the assistance of the Highland
Police Department and of volunteer canine units experienced in
drug detection. The objective was to rid the Junior and Senior
High Schools of illicit drugs and discourage further drug use on
the campuses. The school officials insisted, and the police
agreed, that no criminal investigations would occur as a result
of any evidence recovered during the school investigation. The
school officials did intend, however, to bring any necessary
disciplinary actions against students found in possession of
contraband.
A. Activities Inside The School
On March 23, 1979, a school wide drug inspection was
conducted by the administrators of the Highland School System
with the assistance of the Highland Police Department and
volunteer canine units trained in marijuana detection. The
inspection occurred in both the Junior and Senior High School
campuses and began during the first period class. Teachers
were informed of the inspection that morning by means of a
sealed note upon their classroom desks. Each classroom
teacher was instructed to keep their students in the first period
class and to have them perform their customary work. A canine
team visited each classroom in both the Junior and Senior High
School buildings. Each team consisted of a school adminis-
4 Renfrow requested information from the Highland Police
Department concerning the use of trained canine units for the
planned investigation. Little was contacted by the police
department requesting her to attend the March 14, 1979
meeting.
6a
trator or teacher, a dog and its handler and a uniformed police
Officer. Four such teams were used in the Senior High School
building and two were operating in the Junior High School
rooms. Students were instructed to sit quietly in their seats with
their hands and any purses to be placed upon their desk tops
while the dog handler introduced the dog and led it up and
down the desk aisles. The canine teams spent approximately
five minutes in each room. No incidents of disruption occurred
in the classrooms because of the presence of the dogs or the
teams. The entire investigation lasted approximately two and
one-half hours during which time students wishing to use the
washrooms were allowed to leave the classroom with an escort
of the same sex to the washroom door. The administrative
purpose of the escort was to prevent the disposal of any drugs
on the way to the washroom. No students were observed while
in the washrooms. In order to keep disruptions to a minimum,
late arrivals at the school were directed to a room other than
their regular first period classroom. Uniformed police officers
and school administrators were present in the halls during the
entire investigation. Custodians were present near all locked
doors to provide immediate exit if necessary. During the
inspection, a dog alerted5 to a particular student on approxi-
mately fifty occasions. After each alert, the student was asked
to empty his or her pockets or purse. A body search® was
conducted with respect to eleven students because the dog
continued to alert after the student had emptied pockets or
purse. Plaintiff Doe was one of those students to which a dog
continued to alert after she emptied her pockets. She was
5 An alert is an indication of a trained canine that the odor
of the drug, in this case marijuana, is present in the air or upon
the individual.
6 Although it was not properly defined at trial, a body
search was something less than the nude search that plaintiff
complains she was subject to. Body searches involved extensive
examination of the student’s clothing entailing the removal of
some of the garments.
7a
quietly escorted to a nurse’s station in the Junior High School
and was asked to remain in the waiting room. Upon being
asked to enter the inner office, two women introduced them-
selves to the plaintiff. One was a friend of the plaintiff's mother.
Plaintiff was asked if she had ever used marijuana to which she
answered she had not. She was then asked to remove her
clothing. She was permitted to turn her back to the two women
while she was disrobing. Upon removal, her clothing was
briefly examined, her hair was lifted to determine if any
substances were hidden in it, and she was immediately per-
mitted to dress. No marijuana or other drugs were found in
plaintiff's possession, although it was later discovered that
plaintiff had been playing with one of her dogs that morning of
the search and that dog was in heat.
As a result of the investigation seventeen students were
found in possession of drugs; twelve of those students withdrew
voluntarily from school and three students were expelled
pursuant to the due process statutes of the State of Indiana. I.C.
20-8.1-5-5 et seq. Additionally, two students were suspended
by the administration because they were found to be in
possession of drug paraphernalia.
B. The Canine Units
Ms. Patricia L. Little is the owner and operator of the
Edelheim Police K-9 Academy in Bunker Hill, Indiana. The
academy trains and certifies dogs and their handlers in the
detection of marijuana and explosives as well as in tracking and
attack. Little is also a sworn, non-paid and non-uniformed
Deputy Sheriff of Miami County, Indiana. All the animals used
in the March 23, 1979 inspection were certified and trained by
Little at her academy. Upon request of the Highland School
officials, Little agreed to provide the necessary trained dog units
for the March inspection. She contacted the various dog
handlers in regard to their availability for the inspection
8a
informing them of the time and place. Each handler partici-
pated as an unpaid volunteer with their own dogs.’
On March 23, 1979 Little met with representative of the
Highland Town School District, the Highland Police Depart-
ment and the dog handlers. Little’s main responsibility was to
coordinate the efforts of the school officials with the dog
handlers. Patricia Little herself did not participate in any
capacity other than as a volunteer dog trainer. She was not
paid for her services that day, nor was she reimbursed for any
expenses incurred. Although she wore a jacket with her
academy’s patch sewn on the sleeve and an American flag
patch attached to the other sleeve, she did not wear the uniform
of any 'aw enforcement agency. She was not armed.
During the inspection, Little and each of the other dog
handlers involved knew the individual alerts their dogs would
give in the presence of any marijuana or marijuana para-
phernalia. They also knew the intention by school officials to
ask certain students to empty pockets or purses if the dog’s alert
continued. Little did not suggest that a strip search procedure
be implemented nor did she know that a strip search was
conducted the day in question until after the inspection. More-
over, the decision to strip search an individual student was
solely the responsibility of the school officials. However, Little
and the other trainers did advise the school officials, upon their
dogs’ continued alert, of the necessity of a pocket and/or purse
search. Fourteen handlers and their dogs participated during
7 Plaintiff emphasizes the occupations of the volunteer dog
handlers used in this investigation as being predominately law
enforcement employees. Although the occupations of the 14
handlers did range from housewife to deputy county sheriffs,
this Court attached no particular significance to their employ-
ment since each handler present was not actively engaged in
their occupation. Moreover, each handle’, provided their dog
at their own expense and was not representing any law
enforcement agency while at the schools.
9a
the inspection. Little and her dog were accompanied by a
schooi official and a Highland Police officer during her portion
of the inspection, limited only to the Senior High School. Little
did not have any knowledge of, or direct involvement in, the
search of plaintiff, Doe.
Ill. The Fourth Amendment
This Court is specifically confronted with the following
issues: (1) whether the investigative procedure used by the
school officials with the assistance of law enforcement officers,
for the sole and exclusive purpose of furthering a valid
educational goal of eliminating drug use within the school, was
a seizure and search under the Fourth Amendment; (2)
whether the use of dogs to detect marijuana and marijuana
paraphernalia in the classroom was, standing alone, a search
under the Fourth Amendment; (3) whether the admitted
search of a student’s clothing upon the continued alert of a
trained drug detecting canine was violative of rights protected
by the Fourth Amendment; and (4) whether the nude body
search conducted solely upon the basis of a trained drug
detecting canine’s alert violated the plaintiffs right to be free
from unreasonable search and seizure.
Plaintiffs contentions present before this Court unique
issues both in the area of law concerning the Fourth Amend-
ment and searches of students in public schools® and in the area
8 Buss, The Fourth Amendment and Searches of Students
in Public Schools, 59 lowa L.Rev. 739 (1974); Donoghoe,
Emerging First and Fourth Amendment Rights of the Student, |
J.L. and Educ. 449 (1972); Note, Students and the Fourth
Amendment; Myth or Realty?, 46 U.M.K.C.L.Rev. 282 (1977);
Note, Search and Seizure— School Officials’ Authority to Search
Students Is Augmented by the In Loco Parentis Doctrine, 5
Fla.St.U.L.Rev. 526 (1977).
10a
of the use of canine units trained to detect evidence of drugs.9
This latter area also has implications in the public school
context. ’
A. The General Inspection
Considering first plaintiffs contention that the investigation
of March 23, 1979 constituted a mass detention and deprivation
of freedom in violation of the Fourth Amendment, this Court
finds the assertion to be without merit. Plaintiff, as well as other
students, is subject to the daily routine of class attendance in an
educational environment. During an eight hour day, students
must move from room to room, attending classes designated by
the administration and taught by teachers hired by the school
system. Students are made to change this routine every year, if
not every semester. Movement from class to class entails
9 Notes, Constitutional Limitations On The Use of Canines
to Detect Evidence of Crime, 44 Fordham L.Rev. 973 (1976);
Comments, United States v. Solis: Have The Government’s
Supersniffers Come Down With A Case Of Constitutional Nasal
Congestion?, 13 San Diego L.Rev. 410 (1976). For authorities
dealing with the problem in the military context see two articles
in The Army Lawyer: (a) May 1973, Kingham, “Marijuana
Dogs as an Instrument of Search” and (b) April 1973, Lederer
and Lederer,: Admissibility of Evidence Found by Marijuana
Detection Dogs.”
Realizing fully that the military cases are not dispositive of
or binding precedent on the issues raised here, the history of the
manner in which the Court of Military Appeals has approached
the problem is revealing. See U. S. v. Unrue, 22 U.S.C.M.A.
466, 47 C.M.R. 556 (1973); U. S. v. Thomas, 1 M.J. 397
(C.M.A. 1976)(a three way split on critical issues):
U. S. v. Paulson, 7 M.J. 43 (April 9, 1979), reversing on other
grounds 2 M.J. 326 (A.F.C.M.R. 1976); and U. S. y¥.
Grosskreutz, 5 M.J. 344 (C.A.M.1978). The question of dog
searches has again been certified by the Court of Military
Appeals and remains pending there. See U. S. v. Middleton, 3
M.J. 425 (C.M.A.1977),
lla
intrusions upon the students’ freedoms. Times allocated for
each class period are determined by the school officials, not the
students. Plaintiff must attend the scheduled classes for the
times designated. It was not unusual for students to be kept in
their classrooms longer than the normal periods.
Such a regulation of a student’s movement in no way
denies that person any constitutionally guaranteed right. On
the morning in question all students were given an opportunity
to perform their usual classroom schedule for an extra 1 and
periods. Except for the five minute interval when the canine
unit entered the room, plaintiff and all other students were
exposed only to a longer than normal first period class. Such an
extended period had been experienced at other times during
convocations and school assemblies.
School officials maintain the discretion and authority for
scheduling all student activities each school day. Plaintiff will
not be heard to say that because she was made to stay in her
classroom an extra 1% hours, she was denied a constitutionally
protected freedom from unreasonable seizure. No evidence
was presented at trial that shows plaintiff was in any way
discomforted by the mere fact of being made to continue her
class work for an extra 95 minutes. Although the students were
requested to remain in their first period classes, those wishing to
use the washroom facilities were accommodated by an escort to
the washroom door. Care was taken by the school officials to
provide custodians at each exit in case an emergency arose
Although unknown by the students, those uniformed officers in
the halls that morning were under orders not to pursue any
students outside the building. Although it can be argued that
the spectre of a uniformed officer may chill some vague right to
movement within the school, such contention fails in light of the
fact that student movement is constantly restricted for other
legitimate educational purposes. Moreover, uniformed police
Officers are, unfortunately, not an uncommon sight in today’s
public schools. Therefore, this Court finds no seizure of the
l2a
plaintiff or other students within the Senior and Junior High
School prior to any alert by the trained dogs.
Turning next to the search aspect of the Fourth Amend-
ment, the issue becomes whether the activity of the defendants
on the morning in question prior to any alert by the trained
dogs was a search and, if so, whether the search, although
warrantless, was reasonable. This Court finds for the reasons
stated below that entry by the school officials into each
classroom for five minutes was not a search contemplated by
the Fourth Amendment but, rather, was a justified action taken
in accordance with the in loco parentis doctrine. Furthermore,
the presence of the uniformed police officer in the room, at the
request of the school official and with the agreement that no
arrests would occur as a result of finding any drugs upon
students, did not alter the basic function of the school official’s
activities. Moreover, the presence of the dog and its trainer
within the classroom, also at the request and supervision of the
school officials, was only an aide to that official’s observation of
students. Finally, for purposes of this section, the sniffing of a
trained narcotic detecting canine is not a search. Since no
search was performed up until the time the dogs alerted, no
warrant was necessary for the initial observation by the school
Officials.
There is no question as to the right and, indeed, the duty of
school officials to maintain an educationally sound environment
within the school.'° It is the responsibility of the school
corporation personnel to supervise students while they attend
classes.'! It is also the responsibility of the school administrator
to insure the proper functioning of the educational process. M.
v. Bd. of Ed. Ball-Chatham C.U.S.D. No. 5, 429 F.Supp. 288
(S.D.111.1977). Maintaining an educationally productive at-
mosphere within the school rests upon the school administrator
certain heavy responsibilities. One of these is that of providing
10 Ind.Code, § 20-8.1-5-2.
11 Ind.Code, § 20-8.1-5-1.
l3a
an environment free from activities harmful to the educational
function and to the individual students. Drug use within the
school became an activity the school administrator wished to
eliminate. It cannot be denied that each of the school
administrators possessed the authority to enter a classroom on
the day in question in order to prevent the use of illicit drugs.
People v. Overton, 20 N.Y.2d 360, 283 N.Y.S.2d 22, 229 N.E.2d
596 (1967); M. v. Bd., supra; Bellnier v. Lund, 438 F.Supp. 47
(N.D.N.Y.1977). Acting alone, each school administrator
could have unquestionably surveyed a classroom to prevent
drug use. Because those administrators now acted with assis-
tance from a uniformed officer does not change their function.
The officers were merely aiding in the inspection, at the request
of the school administrators. Their presence does not change
the actions of the school official from that of supervision in /oco
parentis to that of an unwarranted search. Although they were
obviously clothed with their state authority, they had previously
agreed that no arrests would be made as a result of any drugs
found that morning. No police investigations took place on that
day nor have any arrests or prosecutions been initiated as a
result of the March 23, 1979 inspection.
B. The Dogs Within The Classroom
Nor does this court believe the presence of the dog unit
within the classroom changes the nature of the observation.
Again, the trainer and dog were in the rooms at the request and
with the permission of the school administrators. The dog
acted merely as an aide to the school administrator in detecting
the scent of marijuana. The dog handler interpreted the actions
of the dog for the benefit of the school administrator. Bringing
these nonschool personnel into the classroom to aid the school
administrators in their observation for drug abuse is, of itself,
not a search. Students are exposed to various intrusions into
their classroom environment. The presence of the canine team
l4a
for several minutes was a minimal intrusion at best and not so
serious as to invoke the protections of the Fourth Amendment.
Plaintiff, however, contends that the walking up the aisles
and the sniffing of the dog constituted a search within the
meaning of the Fourth Amendment and, as such, it was not
based upon probable cause and was therefore in violation of
her constitutionally protected rights. Plaintiffs assertion mis-
reads the present state of the law concerning the use of drug
detecting canines.
The use of the dogs in this case occurred in the public
school environment, an area where courts have not granted full
application of the Fourth Amendment’s protections. Moore v.
Student Affairs Committee of Troy State Univ., 284 F.Supp. 725
(M.D.Ala.1968); M. v. Bd. Ball-Chatham C.U.S.D. No. 5, 429
F.Supp. 288 (S.D.Ill.1977); Bellnier v. Lund, 438 F.Supp. 47
(N.D.N.Y.1977). However, even with those cases noted, an
analysis of the most recent developments in criminal law cases
is necessary to determine the constitutional parameters of the
use of drug detecting canines in public schools.
Although the subject of using drug detecting canines has
not been specifically addressed in this circuit, it has been
analyzed in other courts. In United States v. Fulero, 162
U.S.App.D.C. 206, 498 F.2d 748 (1974), a marijuana-sniffing
dog was allowed to sniff the air around a footlocker in a bus
depot. The defendant alleged such sniffing constituted an
unpermissible action in violation of his Fourth Amendment
rights. The Circuit Court for the District of Columbia respond-
ed that defendant’s contention was “frivolous” and that the
actions of the police were responsible and not in violation of
any constitutionally protected rights. The Second Circuit Court
of Appeals held in United States v. Bronstein, 521 F.2d 459 (2d
Cir. 1975), cert. den., 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d
324 (1976), that the sniffing of a canine at a baggage terminal
did not constitute a search. One year later, the Ninth Circuit
Court of Appeals also held that the use of marijuana-sniffing
lSa
dogs to sniff the air around a parked semi-trailer was reason-
able and therefore not a prohibited search under the Fourth
Amendment. United States v. Solis, 536 F.2d 880 (9th Cir.
1976). In Solis, the Court of Appeals reversed the district
court’s holding that use of the dog was a search without
probable cause and therefore illegal. The latest circuit to find
that the dog’s actions of sniffing the air outside a defendant’s
locker was not a search was in United States v. Venema, 563
F.2d 1003, (10th Cir. 1977). See also, United States v. Race,
529 F.2d 12 (Ist Cir. 1976).
A common thread that runs through all four of the above
cited circuit cases was the fact that the law enforcement officers
had previous independent information or “tips” concerning the
whereabouts of the drugs that were later sniffed out by the
dogs. See Fulero, supra, 162 U.S.App.D.C. at 206, 498 F.2d at
748; Bronstein, supra, at 460; Solis, supra, at 881; Venema,
supra, at 1004, 1005.
Turning to this case, the evidence shows the school admin-
istrators had compiled an extensive list of previous incidents of
drug use within the school. In twenty school days before the
investigation, thirteen incidents were reported where students
were found either to be in possession of drugs or drug
paraphernalia or under the influence of drugs or alcohol. The
atmosphere within the Highland Junior and Senior High
Schools was one of frustration on the part of school adminis-
trators and faculty brought about by their inability to control or
arrest the drug use problem. Additionally, there was evidence
from some students of refusal to speak out against those
students using drugs for fear of reprisals. The use of the canine
units was decided upon only after the upsurge in drug use at the
schools. The school officials, therefore, had outside independ-
ent evidence indicating drug abuse within the school. Use of the
dogs to detect where those drugs were located was not unrea-
sonable under the circumstances. Nor does the fact that the
officials had no information about specific students and drug
l6a
possession invalidate the use of the dogs. This Court now finds
that in a public school setting, school officials clothed with the
responsibilities of caring for the health and welfare of the entire
student population, may rely on such general information to
justify the use of the canines to detect narcotics. What level of
information is necessary must be determined on a case by case
basis, however, this Court holds the lesser standard of a
“reasonable cause to believe” applicable in such a determina-
tion. See M. v. Bd., supra. School officials fulfilling their state
empowered duties will not be held to the same standards as law
enforcement officials when determining if the use of canines is
necessary to detect drugs within the schools. This lesser
standard applies only when the purpose of the dog’s use is to
fulfill the school’s duty to provide a safe, ordered and healthy
educational environment.
Also considered as a factor in the above cited dog-sniffing
cases was the absence of any normal or justifiable expectation
of privacy with respect to the objects searched.'2 See Bronstein,
supra, at 464 (Mansfield, J. concurring). Although each of
those cases dealt with the search of objects rather than of
persons, as in this case, the same test of reasonableness applies.
As the Supreme Court of the United States stated in Katz v.
United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967), the Fourth Amendment protections are the protections
of people not places. The Katz Court held that police action
which intrudes upon and invades an individual’s justifiable
expectation of privacy constitutes a search within the meaning
of the Fourth Amendment. This Court first distinguishes Katz
from this case on the basis that this is not a police action and
second, that the students did not have a justifiable expectation
of privacy that would preclude a school administrator from
sniffing the air around the desks with the aid of a trained drug
12 United States v. Fulero (footlocker); United States vy.
Bronstein (suitcase); United States v. Solis (semi-trailer);
United States v. Venema (rented locker).
17a
detecting canine. The use of the dog in this operation was an
aid to the school administrator and as such its use is not
considered a search. Solis, supra. Moreover, plaintiff as well as
other students in a public school, does not fall within the
meaning of Katz because of the very nature of public school
education. Any expectation of privacy necessarily diminishes in
light of a student’s constant supervision while in school. Be-
cause of the constant interaction among students, faculty and
school administrators, a public school student cannot be said to
enjoy any absolute expectation of privacy while in the class-
room setting.
This is not to indicate that one attending public schools
sheds his or her constitutional rights upon entering the school
house doors; such is obviously not the case. Tinker v. Des
Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d
731 (1969) (First Amendment protection when wearing black
armbands as a form of student expression); Jn re Gault, 387
U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (Procedural due
process guaranteed in suspension and expulsion hearings).
However, in matters concerning the reasonable exercise of
supervision and authority by school officials, this Court recog-
nizes that a certain balancing occurs between an individual
student’s rights and the school administrator’s need to protect
all students and the educational process. Bellnier v. Lund, 438
F.Supp. 47 (N.D.N.Y.1977). A reasonable right to inspection
is necessary to the school’s performance of its duty to provide
an educational environment. Moore v. Student Affairs Com-
mittee of Troy State Univ., 284 F.Supp. 725 (M.D.Ala.1968).
The health and safety of all students at the two schools was
threatened by an increase in drug use. The schools’ adminis-
trators delegated by the state with the duty and responsibility to
maintain order, discipline, safety and education within the
school system supervised the investigation which was designed
with the single purpose of eliminating drug use inside the school
buildings. The operation was carried out in an unintrusive
manner in each classroom.
18a
Moreover, the procedure of bringing the trained dogs into
each classroom was planned so as to cause only a few minutes
interruption. All students were treated similarly up until an
alert by one of the dogs. No student was treated with any
malice nor was the operation planned in a way so as to
embarrass any particular student. Weighing the minimal
intrusion against the school’s need to rid itself of the drug
problem, the actions of the school officials leading up to an alert
by one of the dogs was reasonable and not a search for
purposes of the Fourth Amendment. Up until the trained dogs
indicated the presence of marijuana, no violation of any basic
Fourth Amendment rights occurred.
C. The Pocket Search
When a dog alerted to the plaintiff, she was ordered by a
police officer to empty her pockets onto the desk under the
supervision of a school administrator. She contends that this
violated her constitutional right to be secure against unreason-
able search and seizure.
The Fourth Amendment recognizes that for each individ-
ual there is a sphere of privacy which that individual can
justifiedly expect government officials not to invade. In other
words, an invasion of that sphere of privacy is a search under
the terms of the Fourth Amendment. And, generally, the
Fourth Amendment makes two demands of a government
Official wishing to carry out a search. First, the government
Official must have probable cause to believe that the law has
been or is being violated. Second, the government official must
obtain a warrant before carrying out the search.
But these specific requirements can be modified by special
circumstances. A city’s interest in enforcing a housing code
modifies the probable cause requirement. Camara v. Municipal
Court of City and County of San Francisco, 387 U.S. 523, 87
S.Ct. 1727, 18 L.Ed.2d 930 (1967). The federal government’s
19a
interest in enforcing safety and health regulations modifies the
probable cause requirement. Marshall v. Barlow’s, Inc., 436
U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Exigent
circumstances can excuse the warrant requirement. Chambers
v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
Border searches are subject to a modified probable cause
requirement and are excepted from the warrant requirement.
U.S. v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617
(1977). And searches to prevent skyjacking are subject to a
modified probable cause requirement and are excepted from
the warrant requirement. United States v. Skipwith, 482 F.2d
1272 (Sth Cir. 1973).
While a school student does not shed at the schoolhouse
door rights guaranteed by either the Fourth Amendment or any
other constitutional provision (Tinker v. Des Moines School
District, supra), the student’s Fourth Amendment and other
constitutional rights are modified by that limited in loco parentis
relationship which the school officials have with the students.
That limited in loco parentis relationship modifies the student’s
Fourth Amendment guarantee of a sphere of privacy which the
student can justifiedly expect state officials not to invade. While
there is a core of privacy so vital to the student’s personhood
that it must be respected by a school official standing in loco
parentis, that sphere of privacy protected by the Fourth
Amendment can usually be invaded by a school official stand-
ing in loco parentis without a warrant, and (rather than upon
probable cause) upon reasonable cause to believe that the
student has violated or is violating school policy. Moore v.
Student Affairs Committee of Troy State University, supra; M. v.
Board of Education Ball-Chatham Comm. Unit School Dist. No.
5, supra. In other words while “the in loco parentis authority of
a school official cannot transcend constitutional rights ..., the
student-teacher relationship out of which [in loco parentis|
authority readily flows does have an impact on the application
of constitutional doctrine to the rights of students.” Picha v.
Weilgos, 410 F.Supp. 1214, 1218-19 (N.D.IlI.1976). “The
20a
student’s right to be free from unreasonable search and seizure
must be balanced with the necessity for the school officials to be
able to maintain order and discipline in their schools and to
fulfill their duties under the in loco parentis doctrine to protect
the health and welfare of their students.” M. v. Board of
Education Ball-Chatham Comm. Unit School Dist No. 5, supra,
429 F.Supp. at 292.13
In conducting the pocket search, as well as the other
searches in question, the school officials clearly were not
concerned with the discovery of evidence to be used in criminal
prosecutions, but rather were concerned solely with the elimina-
tion of drug trafficking within the schools. It cannot be disputed
that the school’s interest in maintaining the safety, health and
13 This Court notes the state of the law is unclear as to
whether the Fourth Amendment and its coordinate remedy, the
Exclusionary Rule, apply in full force to searches of students.
The competing theories seem to be the following: 1) that the
Fourth Amendment applies full force, requiring a finding of
probable cause before an impartial magistrate before the search
could be declared reasonable. State v. Mora, 307 So.2d 317
(La.1975); Buss, The Fourth Amendment and Searches of
Students in Public Schools, 59 lowa L.Rev. 739 (1974); 2) the
Fourth Amendment does not apply because of the doctrine in
loco parentis which clothed the school officials with immunity as
a “private citizen.”” Commonwealth v. Dingfelt, 227 Pa.Super.
380, 323 A.2d 145 (1974); Mercer v. State, 450 S.W.2d 715
(Tex.Civ.App.1970); Jn re Donaldson, 269 Cal.App.2d 509, 75
Cal. Rptr. 220 (1969); People v. Stewart, 63 Misc.2d 601 313
N.Y.S.2d 253 (Crim.Ct., N.Y.Co.1970); 3) the Fourth Amend-
ment, although applicable, is emasculated by the inapplicability
of the Exclusionary Rule. United States v. Coles, 302 F.Supp.
99 (D.Me.N.D.1969); and 4) the Fourth Amendment is appli-
cable but the standard of determining whether the search was
reasonable will be lowered to something other than probable
cause. People v. Scott D., 34 N.Y.2d 483, 315 N.E.2d 466, 358
N.Y.S.2d 403 (1974); State v. McKinnon, 88 Wash.2d 75, 558
P.2d 781 (1977); People v. Jackson, 65 Misc.2d 909, 319
N.Y.S.2d 731 (App.Term, Ist Dept.1971), aff'd, 30 N.Y.2d
734, 333 N.Y.S.2d 167, 284 N.E.2d 153 (1972).
21a
education of its students justified its grappling with the grave,
even lethal, threat of drug abuse. The pocket search was
conducted in furtherance of the school’s legitimate interest in
eliminating drug trafficking within the school.
It should be noted at this point that had the role of the
police been different, this court’s reasoning and conclusion may’
well have been different. If the search had been conducted for
the purpose of discovering evidence to be used in a criminal
prosecution, the school may well have had to satisfy a standard
of probable cause rather than reasonable cause to believe.
Picha v. Wielgos, supra. Furthermore, this court is not here
ruling whether any evidence obtained in the search could have
been used in a criminal prosecution. This court is ruling that so
long as a school is pursuing those legitimate interests which are
the source of its in loco parentis status, “maintaining the order,
discipline, safety, supervision, and education of the students
within the school” (Picha v. Wielgos, supra, 410 F.Supp. at
1221), it is the general rule that the Fourth Amendment allows
a warrantless intrusion into the student’s sphere of privacy, if
and only if the school has reasonable cause to believe that the
student has violated or is violating school policies.
The pocket search was an invasion of the sphere of privacy
which the Fourth Amendment protects; it was a search. But the
alert of the dog constituted reasonable cause to believe that the
plaintiff was concealing narcotics. Having that requisite reason-
able cause to believe that the plaintiff was concealing narcotics,
the defendants did not violate the plaintiffs Fourth Amend-
ment rights by ordering her to empty her pockets onto the desk.
By conducting the pocket search, the school officials did not
violate the plaintiffs right to be secure against unreasonable
search and seizure.
22a
D. The Nude Search
Plaintiff further alleges that being subjected to the nude
search that morning violated her right against unreasonable
search and seizure. It was only upon a continued alert of the
trained canine that the school officials based their decision to
search the plaintiff. This Court must focus upon the reason-
ableness of the search to determine its constitutionality. Upon
doing so, this Court holds that conducting a nude search of a
student solely upon the continued alert of a trained drug-
detecting canine is unreasonable even under the lesser “‘reason-
able cause to believe” standard.
Subjecting a student to a nude search is more than just the
mild inconvenience of a pocket search, rather, it is an intrusion
into an individual’s basic justifiable expectation of privacy.
Before such a search can be performed, the school adminis-
trators must articulate some facts that provide a reasonable
cause to believe the student possesses the contraband sought.
The continued alert by the trained canine alone is insufficient to
justify such a search because the animal reacts only to the scent
or odor of the marijuana plant, not the substance itself. There
is always the possibility that one’s clothing may have been
inadvertently exposed to the pungent odor of the drug.
Although a trained dog is certainly more discriminative than
electronic detection devices, United States v. Bronstein, supra,
at 462, 463, it only alerts to the odor of the substance, not the
substance itself. Therefore, the alert of the dog alone does not
provide the necessary reasonable cause to believe the student
actually possesses the drug.
Factors considered important when determining the rea-
sonableness of a student search are: (1) the student’s age; (2)
the student’s history and record in school; (3) the seriousness
and prevalence of the problem to which the search is directed;
and (4) the exigency requiring an immediate warrantless
search. Bellnier v. Lund, 438 F.Supp. 47 (N.D.N.Y.1977);
People v. Scott D., supra, fn. 11.
23a
In this case, the court finds the search unreasonable
because no facts exist, other than the dog’s alert, which would
reasonably lead the school officials to believe the plaintiff
possessed any drugs. Therefore, the nude search of plaintiff
was unlawful because it did violate her Fourth Amendment
right against an unreasonable search and seizure.
E. Conclusion
It has long been established that law enforcement person-
nel can and must use the basic human senses in the detection of
crime. These human senses may generally be aided by such
non-living artificial devices as binoculars, flashlights,
magnetometers, breathalyzers, camera lenses and ordinary
prescription glasses. Four decades ago, Professor Wigmore
cited the rule that most courts held admissible evidence that
tracing by a trained dog led to the accused. 1 Wigmore,
Evidence, Section 177(2) (3d Ed.1940).
Dogs have long been used in police work. They often
accompany police officers on night patrol in detection through
sound and scent of would-be criminals lurking in the dark or
moving in stealth. It is well known that a patrol dog is
endowed by nature with qualities of hearing and smell that
appear to be superior to those of humans. See U.S. v. Thomas,
1 M.J. at 401 (C.M.A.1976).
It is generally known that marijuana radiates a distinctive
odor which can be detected by humans acquainted with it, and
by trained dogs. U. S. v. Guerra, 554 F.2d 987 (9th Cir. 1977);
U. S. v. Bronstein, 521 F.2d 459 (2d Cir. 1975), cert. den., 424
U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324; U. S. v. Pond, 523
F.2d 210 (2d Cir. 1975), cert. den., 423 U.S. 1058, 96 S.Ct. 794,
46 L.Ed.2d 649 (1976); U. S. v. Martinez-Miramontes, 494
F.2d 808 (9th Cir. 1974), cert. den., 419 U.S. 897, 95 S.Ct. 176,
42 L.Ed.2d 141 (1974); U. S. v. Falley, 489 F.2d 33 (2d Cir.
1973); U. S. v. Lewis, 392 F.2d 377 (2d Cir. 1968), cert. den.,
24a
393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170 (1968); and People
v. Campbell, 67 Ill.2d 308, 10 Ill.Dec. 340, 367 N.E.2d 949
(1977).
People trafficking in illegal narcotics often attempt to
conceal the odor. See U. S. v. Fulero, 162 U.S.App.D.C. 206,
498 F.2d 748 (1974). The existence of such odors often
provides useful information to investigative law enforcement
officers concerning the location and proximity of illegal con-
trolled substances. The Supreme Court of the United States has
long recognized that such odors can be convincing evidence of
probable cause. See Johnson v. U. S., 333 U.S. 10, 68 S.Ct. 367,
92 L.Ed. 436 (1947). (It should be noted this case went off on
the warrant requirement and not the existence of probable
cause. )
The Supreme Court of the United States has yet to rule
explicitly on whether the use of narcotic detection dogs in the
context of the Fourth Amendment establishes probable cause.
One case may point the direction. In U. S. v. Chadwick, 433
U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), a marijuana
detection dog signaled the presence of a controlled substance
(marijuana) inside a footlocker. The First Circuit had held
that such provided probable cause to believe that the footlocker
contained a controlled substance. Here, as in Johnson, the court
went off on the warrant requirement of the Fourth Amendment.
It was the unauthorized and nonconsensual opening of the
locker and the inspection of its interior that constituted the
unlawful search, not the use of the dog. The dog’s conduct
constituted evidence that caused the court to observe that
“Even on the record the issuance of a warrant by a judicial
officer was reasonably predictable.’’, 97 S.Ct. 2486. Obviously,
under the reasoning of Johnson and Chadwick a description of a
dog’s conduct, training and experience by a knowledgeable
person who can interpret the conduct of the dog as signaling the
presence of a controlled substance would constitute the minimal
requirement for finding probable cause.
25a
It is also apparent that the use of properly trained dogs in
public areas accessible to them is a useful aid to law enforce-
ment Officials in determining the existence of probable cause to
believe that contraband exists within a certain locale. In U.S. v.
Solis, the 9th Circuit at 536 F.2d 882 stated:
“Dogs because of their keen olfactory sense, have long
been used to assist police in search and rescue missions
.... Detection of contraband is a similar and related task.
The recent proliferation of crimes involving transportation
of drugs and explosives has led naturally to the training of
dogs... to detect the presence of such contraband.”
Neither does the reasoning or result in Katz v. U. S., 389 US.
347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1976), constitute a per se
limitation on the proper use of properly trained dogs in the
limited and legitimate area of police investigation. Neither
does the same constitute a per se violation of the Fourth
Amendment. In a proper case, the conduct of a properly
trained dog standing alone can provide the necessary basis for
probable cause. To be sure such conduct of a dog must be
interpreted by a knowledgeable person. See the careful
analysis in U. S. v. Grosskreutz, 5 M.J. 344 (C.M.A.1978).
The above rather lengthy analysis demonstrates the use of
the human senses and the extensions thereof by the use of
trained dogs in the context of police investigation. There is a
heavy if not total carryover of the ideas expressed to adminis-
tration of the public schools.
The General School Powers Act of the State of Indiana,
1.C. 20-5-l-1 is a broad grant of authority to those legally
responsible for the administration of the public schools and has
been so interpreted by the Courts of Indiana. Salem Commu-
nity School Corp. v. Easterly, 150 Ind.App. 11, 275 N.E.2d 317
(1971), and Gary Teachers Union No. 4 v. Gary, 152 Ind.App.
591, 284 N.E.2d 108 (1972). See also, Bouse v. Hipes, 319
F.Supp. 515 (S.D.Ind.1970).
26a
There is abundant credible evidence that the defendant
school officials in this case had every reason to be concerned
about the use of and trafficking in illegal controlled substances
in the schools here concerned. It is equally apparent that in the
fulfillment of their statutorily imposed duties these school
Officials could and should use their human senses to detect
conditions that were violative of the good order of the school.
In doing so, such school officials are not acting as police officers
but are simply meeting their obligations as school officials.
These school officials can secure proper aids to supplement
and assist basic human senses. In doing so, it should be
emphasized that the defendants proceed as school officials and
not, per se, as policemen. In this case, acting as school officials,
the defendants proceeded with a careful and sensitive plan that
was formulated with much concern for basic educational val-
ues. In the execution of this plan, the school officials sought the
aid of other trained persons who had relevant talents from
various community resources. Various police departments were
one such resource. Ms. Little with her vast experience in the
training of dogs was another resource. Ms. Little was engaged
in a perfectly legitimate, if unprofitable, enterprise of training
these type dogs. There is nothing sinister about her enterprise.
As this Court saw and heard her in the court room, there is
absolutely nothing sinister about her.
The school officials made every reasonable effort to carry
off this plan in a manner compatible with proper order in the
schools and with the values therein involved. The proper
administration of the public schools necessarily involves the
requirement that students be in certain places at certain times.
So it was with this plan. Necessary flexibility was built into it in
regard to washroom and other human needs. Respect for
individual dignity of the student was carefully maintained. A
light relaxed atmosphere was created. The effect was anything
but a gestapo-like effort run by gestapo-type people. To
Suggest anything approaching that idea is to do an extreme
27a
disservice to a group of dedicated people who carry heavy legal
and moral obligations for public education.
This Court finds no constitutional fault with the basic plan
and program as executed. It finds no fault with the school
administrators using their own senses and the senses of properly
trained outside personnel and dogs to detect serious conditions
that are patently adverse to the proper administration of a
public school. No fault is found with requiring students to
remain in their seats without notice and with their hands on
their desks for short periods of time. No fault is found with
requiring a student to empty clothing pockets and/or purses
upon the alert of a properly trained dog conducted by a
properly trained person.
However, when the dog has alerted as to a particular
student in the above context and that student is removed from
the basic routine as above described and taken to another area
of the school for a more thorough examination of the student’s
body and clothing, another set of constitutional values comes
into play. In such a case, there must be adherence to the
protections required by the Fourth Amendment. Of course, this
requirement while basic and fundamental depends on the test
of reasonableness. This Court cannot say as a matter of law
that the alerting of a trained dog standing alone is sufficient to
establish reasonable cause to believe a complete body search by
school officials in surroundings that insure and maintain human
dignity. This Court can conceive of many situations where the
alert of a trained dog alone can provide the necessary reason-
able cause for a more complete but private body search.
It is this Court’s finding that no such Fourth Amendment
probable cause can be found in this record as to the body
search of the only individual plaintiff remaining in this case. To
be sure, the question may be close when the situation is frozen
as of the time the search took place. However, this Court has
serious reservations as to whether there were sufficient facts to
justify a full body search of this plaintiff at the time it was
conducted.
28a
IV. Defendants Pendergast and Little
This Court now grants summary judgment in favor of both
defendant Al Pendergast, Chief of Highland Police Depart-
ment, and Patricia Little.
Pendergast did not participate in the illegal search of
plaintiff Doe, nor does any evidence show he conducted the
search. No liability can be found for any of the actions of this
defendant. Adams v. Pate, 445 F.2d 105 (7th Cir. 1971).
Patricia Little, likewise, did not participate in the illegal
search, moreover, she in no way indicated to the school officials
that such illegal searches were necessary at the Highland
Schools. This Court does not, therefore, find the actions of
Little during the morning in question to have violated any of
plaintiffs constitutional rights. See Baker v. McCollan,
U.S. ___, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).
V. Relief
The plaintiff has prayed for two forms of relief in the
present action and has reserved on the prayer for damages.
This Court now rules on all three forms of relief, declaratory
judgment, injunction, and damages. Because of the Court’s
findings on the immunity of the defendant school officials, the
issue of damages can be determined at this time.
A. Damages
It is settled case law that school officials possess a qualified
immunity with respect to acts performed within the course of
their duties. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43
L.Ed.2d 214 (1975), reh. den., 421 U.S. 921, 95 S.Ct. 1589, 43
L.Ed.2d 790 (1975); Note, School and School Officials, 78
W.Va.L.Rev. 259 (1975). That immunity exists if the official
acts in good faith and not in ignorance or disregard of settled
indisputable principles of law. Wood v. Strickland, supra, 420
USS. at 321, 95 S.Ct. 992. In the Wood case the court stated:
29a
“We think there must be a degree of immunity if the work
of the schools is to go forward; and, however worded, the
immunity must be such that public school officials under-
stand that action taken in good-faith fulfillment of their
responsibilities and within the bounds of reason under all
the circumstances will not be punished and that they need
not exercise their discretion with undue timidity.” Wood v.
Strickland, supra, at 321, 95 S.Ct. at 1000.
The defendant school administrators acted in good faith
and with a regard for the welfare and health of the plaintiff.
Her search was conducted in an atmosphere designed to reduce
to a minimum any apprehension or embarrassment. Moreover,
the law in the area of student searches in public schools is
obviously unsettled as suggested by the diversity of the theories
and results in the cases cited here. This Court will not charge
school officials with “predicting the future course of con-
stitutional law.” Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct.
1213, 1219, 18 L.Ed.2d 188 (1966). Therefore, this Court finds
that the defendant school officials are immune from liability
arising out of the search and are entitled to summary judgment
on the issue of monetary damages.
B. Declaratory Relief
Plaintiff is entitled to declaratory relief only upon the
Court’s finding that the nude body search made without a
finding of any reasonable cause to believe is in violation of her
Fourth Amendment rights. In all other aspects, plaintiff's
prayer for declaratory relief if now DENIED. See, 28 U.S.C.
§ 2251.
C. Injunctive Relief
This Court now DENIES plaintiff's motion for a per-
manent injunction as to all issues raised. Because this Court has
ruled that the nude body search of plaintiff was in violation of
the Fourth Amendment and thus unlawful, the request now
30a
becomes similar to a prayer for injunctive relief against a
criminal act and therefore unnecessary. Wooley v. Maynard,
430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). More-
over, granting plaintiffs prayer for injunctive relief as to the
other aspects of the inspection complained of would be incon-
sistent with this Court’s findings.
VI. Class
This Court now denies plaintiff's request for certification of
a class pursuant to 23(a) and (b)(2) of the Federal Rules of
Civil Procedure.
There is a basic burden on the plaintiff to show entitlement
to a class certification under Rule 23. It takes more than mere
verbiage in a complaint to meet that burden. There is also a
basic burden to demonstrate that the plaintiff will be an
adequate representative of the other members of a class. See
East Texas Motor Freight System v. Rodriquez, 431 U.S. 395, 97
S.Ct. 1891, 52 L.Ed.2d 453 (1977). See also, Shelton v. Pargo,
Inc., 582 F.2d 1298 (4th Cir. 1978); Doninger v. Pacific
Northwest Bell, Inc., 564 F.2d 1304 (9th Cir. 1977); Shipp v.
Memphis Area Office Tenn. Dept. of Emp. Security, 581 F.2d
1167 (6th Cir. 1978); and Miller v. Motorola, Inc., 76 F.R.D.
516 (N.D. Ill.1977).
The record here clearly discloses several fatal failures of
the plaintiff to meet the elementary requirements of Rule 23.
Those members of the proposed class are not so numerous so as
to make joinder of them as parties impracticable. Fifty students
were alerted to by the drug detecting canines on the morning in
question. Of those fifty, eleven were subject to a more extensive
search of the body. Of those eleven, only three other students
were subject to the unlawful nude search. It is also very clear
from the record that some students in this high school are not in
sympathy with the claims and contentions of this plaintiff. This
Court finds that joinder would have been permissible and that
in light of counsel’s motion to dismiss party plaintiffs it now
DENIES plaintiff's motion for class certification.
lb
Zn the
United States Court of Appeals
For the Seventh Cirrntt
No. 79-2116
DIANE DOE, etc., et al.,
Plaintiffs-A ppellants,
fe
OMER RENFROW, etc., et al.,
Defendants-A ppellees.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. H 79-233—Allen Sharp, Judge.
ARGUED APRIL 3, 1980—DECIDED JULY 18, 1980*
Before CUMMINGS, SPRECHER and BAUER, Circuit
Judges.
PER CURIAM. In May 1979, plaintiff Diane Doe, a stu-
dent at Highland Junior .High School in Highland, In-
diana, and four other students! filed a civil rights com-
plaint under 28 U.S.C. §§ 1343(3) and 1343(4). The
* Fae -) al originally was decided by unreported order on
July 18, 1980. See Circuit Rule 35. The panel has decided to
issue the decision as an opinion.
! The four other plaintiff students were dismissed without
rejudice to become members of the proposed plaintiff class
‘but with prejudice with respect to damages) by the district
judge on motion of plaintiff's counsel on June 7, 1979.
2b
2 No. 79-2116
defendants were Omer Renfrow, Superintendent of the
Highland, Indiana, Town School District; George Kur-
teff, Principal of the Highland Junior High School; five
members of the Highland Town School District Court: Al
Prendergast, Highland Police Chief; and Patricia Little,
a trainer of drug-detecting canines.” Plaintiff requested
a class certification of other students at Highland High
School and Highland Junior High School. The gravamen
of the complaint was that plaintiff and others were il-
legally sniffed by police dogs during school hours and
pocket-searched if a dog alerted to them in order to
determine whether they possessed controlled substances
and contraband. As part of the drug investigation, plain-
tiff alleged that she and three other students “were com-
pelled to remove their clothing and submit to visual in-
spection by defendants’ agents” (Par. 17 of complaint).
The complaint also charged that 2,780 students at
Highland High School were subject to the canine snif-
fing and that 17 of them thereafter “were summarily
suspended, expelled, or compelled to withdraw from
attendance at school” (Par. 16). According to plaintiff,
defendants’ practice was “unsupported by particularized
facts, reasonable suspicion or probable cause to believe
that any of the persons” subject to the canine drug in-
vestigation would possess cofritralled substances (Par.
28). Alleging that defendants’ acts Vielated the Fourth
and Fourteenth Amendments in particular~Diane Doe
sought $50,000 in actual damages and an equal amount
in punitive damages, as well as declaratory and injunc>—~
tive relief.
A hearing was held on June 7, 1979, with respect to
various motions of the parties. On August 30, 1979,
Judge Sharp dismissed the action on the merits as to the
Highland police chief and dog trainer Patricia Little
because they did not participate in the strip search. He
granted defendant school officials summary judgment
on the issue of monetary damages for the body search of
Fourteen other named defendants were dismissed without
prejudice by the district court on June 7, 1979. Several hun-
dred parents or patrons of the Highland School District were
simultaneously permitted to intervene as party-defendants.
3b
No. 79-2116 3
Diane Doe. However, he held that she was entitled to
declaratory relief upon the court’s finding that the nude
body search was made without a finding of reasonable
cause and in violation of her Fourth Amendment rights.
The judgment denied all other aspects of her prayer for
declaratory relief, denied her motion for a permanent
injunction and denied class certification. The judgment
was supported by a lengthy, thoughtful opinion reported
in 475 F.Supp. 1012.4
Defendants have not appealed from the trial court's
ruling that the nude search of Diane Doe was without
reasonable cause to believe she possessed contraband.
Because this ruling was not appealed, we will not con-
sider the argument contained in Part V of the brief of
amicus curiae Indiana School] Boards Association.
For the reasons given in Judge Sharp’s scholarly
opinion, which we adopt as our own, the judgment is af-
firmed except with respect to the portion of the decision
that the defendant school officials are immune from
liability arising out of the nude search because they had
a “good faith” defense as articulated in Wood +.
Strickland, 420 U.S. 308. The Wood case found that
school officials who act “in good-faith fulfillment of their
responsibilities and within the bounds of reason under
all the circumstances” and “not in ignorance or dis-
® The only defendants who decided upon the nude search of
Diane Doe were school officials who possess a qualified im-
munity. They were held not liable for damages because no
malice was shown and their subjective and objective good
faith was not challenged by the complaint nor was the law in
the area supposedly settled in plaintiff's favor. Wood v.
ae 420 U.S. 308, 321-3822; Pierson v. Ray, 386 U.S.
* The result reached by the district court is seemingly con-
doned in an unnamed student’s article entitled “The Con-
Stitutionality of Canine Searches in the Classroom,” 71 The
Journal of Criminal Law & Crim inology 39 (1980), although
the author disagrees with some of the reasoning in the
opinion.
See also United States v. Klein, ..... F.2d ..... (7th Cir. No. 79-
2484. decided June 16, 1980), Part II of slip op. dealing with
canine sniffing of luggage.
4b
4 No. 79-2116
’
regard of settled indisputable principles of law” are im-
mune from liability. The district court in the instant
case added that it “will not charge school officials with
‘predicting the future course of constitutional law.’” 475
I’.Supp. at 1028. No one can quarrel with these
propositions but we do take exception to the application
of these sterling principles to the facts of this case.
It does not require a constitutional scholar to conclude
that a nude search of a thirteen-year-old child is an in-
vasion of constitutional rights of some magnitude. More
than that: it is a violation of any known principle of
human decency. Apart from any constitutional readings
and rulings, simple common sense would indicate that
the conduct of the school officials in permitting such a
nude search was not only unlawful but outrageous under
“settled indisputable principles of law” (420 U.S. at 321).
Wood v. Strickland, supra, accords immunity to school
officials who act in good faith and within the bounds of
reason. We suggest as strongly as possible that the con-
duct herein described exceeded the “bounds of reason”
by two and a half country miles. It is not enough for us
to declare that the little girl involved was indeed de-
prived of her constitutional and basic human rights. We
must also permit her to seek damages from those who
caused this humiliation and did indeed act as though
students “shed at the schoolhouse door rights guaranteed
by * * * any * * * constitutional provision” (475 F.Supp.
at 1023).
We return the matter to the trial court for a deter-
mination of damages stemming from the body search.
The decision is otherwise affirmed, costs to be borne
equally by the respective parties.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
Ic
dn the
United States Court of Appeals
For the Seventh Cirrnit
No. 79-2116
DIANE DOE, etc., et al.,
Plaintiffs-A ppellants,
VU.
OMER RENFROW, etc., et al.,
Defendants-A ppellees.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. H 79-233—Allen Sharp, Judge.
NOVEMBER 3, 1980
Before CUMMINGS, SPRECHER, and BAUER, Circuit
Judges.
ORDER
On consideration of the petition for rehearing and
suggestion for rehearing en banc filed in the above-
entitled cause by plaintiff-appellant Diane Doe, a vote of
the active members of the Court was requested, and a
majority of the active members of the Court did not vote
to grant a rehearing en banc.* All of the judges on the
original panel have voted to deny the petition for rehear-
ing. Accordingly,
It Is ORDERED that the aforesaid petition for rehear-
ing be, and the same is hereby, DENIED.
* Chief Judge Fairchild and Circuit Judges Swygert, Wood
and Cudahy voted to grant a rehearing en banc. Their dissents
are appended to this order.
2c
2 No. 79-2116
SWYGERT, Circuit Judge, dissenting from the order
denying the petition for rehearing.
I am deeply troubled by this court’s holding that the
dragnet inspection of the entire student body of the
Highland Senior and Junior High Schools by trained
police dogs and their dog-handlers did not constitute a
search under the Fourth Amendment. No doctrine of in
loco parentis or diminished constitutional rights for
children in a public school setting excuses this alarming
invasion by police and school authorities of the con-
stitutional rights of thousands of innocent children. Any
attempt by the district court or this court to portray the
events of March 23, 1979 as only a deviation in degree
from the normal school day is grossly misplaced. In my
view, those events were a deviation in kind and con-
stituted a danger not only to the psychological well-
being of the children but to the fundamental concepts of
our Bill of Rights.
Although a number of incidents involving alcohol,
drugs, and related paraphernalia had been reported to
school authorities, no more than twenty-one out of 2,780
students had been involved. School authorities had to
concede that, in general, conditions at the Highland
schools were at least average and could well have been
better than at most other schools. At the time of the
raid, they possessed no specific information as to par-
ticular drugs or contraband, transactions or events, or
drug suppliers or abusers. Nevertheless, over a period of
weeks a scheme was developed and executed that im-
— all 2,780 students and subjected all to a
umiliating search by police dogs.
The raids began at 8:45 A.M. on March 23, 1979. The
searchers were divided into teams consisting of at least
one dog, one dog handler, one school administrator or
teacher, and one or two uniformed police officers. Four-
teen dogs were on hand. For the duration of the raid, all
schoolhouse doors were either locked or tightly guarded
by police and school officials. All students were detained
in their first period classrooms; any late arrivers or
visitors were led to and detained in a room set aside for
3c
No. 79-2116 3
that purpose. No student was allowed to leave his or her
classroom, and if any claimed to need to use the lavatory
facilities, school or police authorities escorted and
watched over them.
Every student was instructed to place his belongings
in view and his hands on his desk. Girls placed their
purses on the floor between their feet. The teams of
searchers moved from room to room, and from desk to
desk. Every single student was sniffed, inspected, and
examined at least once by a dog and a joint school-police
team. The extraordinary atmosphere at the school was
supplemented still further when representatives of the
press and other news media, invited in by schoo!
authorities, entered the schoolhouses and classrooms
during the raid and observed the searches while in
progress.
The raid lasted about three hours. After the sniffing
and examination of 2,780 students, the searchers found
fifteen high school students—anda no junior high
students—in possession of illicit materials. School and
police authorities removed five high school students—
three girls and two boys—from their classrooms and
subjected them to personal interrogations and thorough,
but not nude, searches. None was found to be in posses-
sion of any contraband. Three or four junior high
students were similarly treated and cleared. Four junior
high students—all girls—were removed from their
classes, stripped mm and interrogated. Not one of
them was found to possess any illicit material.
The district judge held in an opinion adopted by a
panel of this court that “the presence of the dog and its
trainer within the classroom, also at the request and
supervision of the school officials, was only an aide to
that official’s observation of students... . (T'Jhe sniffin
of a trained narcotic detecting canine is not a search.”
strongly disagree. In my view, the circumstances of
March 23 can hardly be likened to the observations of a
school administrator, sniffing the air about him as he
goes about his business. Here there was evidence that
the trained dogs ran their noses along pupils’ legs, ac-
tually touching the bodies of the students.
4c
4 No. 79-2116
The cases cited by the district court as holding that
sniffing dogs do not constitute a search are totally inap-
posite because in those cases the dogs were sniffing in-
animate and unattended objects rather than people.
Here the intrusive probings by the dogs were in no sense
mere observation of “‘physical characteristics . . . con-
stantly exposed to the public,’. . . [but] constituted the
type of ‘severe, though brief, intrusion upon cherished
personal security’ that is subject to constitutional
scrutiny.” Cupp v. Murphy, 412 U.S. 291, 295 (1973)
(citations omitted). See also United States v. Kenaan, 496
F.2d 181 (1st Cir. 1974). We need not speculate afar
about the psychological trauma suffered by the students
during this mass search. The accusing finger of the
police may well remain for a lifetime upon these young,
impressionable minds.
Had a warrant properly been sought, I am convinced
that none could have issued consistent with the Fourth
Amendment. The police and school officials neither
possessed nor attempted to gain specific information
about any particular student. There was also no infor-
mation as to any particular drug or contraband transac-
tion or event. Thus, all 2,780 students were under suspi-
cion, and there was no known crime.
A search under these conditions is unconstitutional un-
der either a reasonable suspicion or a probable cause
standard. Terry v. Ohio, 392 U.S. 1 (1968); Davis v. Mis-
sissippi, 394 U.S. 721 (1969); Ybarra v. Illinois, 444 U.S.
85 (1979). I cannot consider this a “school” case because
the mass search was planned and executed with exten-
sive police involvement rather than solely by school per-
sonnel. But even considered in the context of “school”
cases, there was no reasonable suspicion here to justify
the mass search. See M.M. v. Anker, 477 F. Supp. 837
(E.D.N.Y.), affd, 607 F.2d 588 (2d Cir. 1979). Nor was
the constitutional violation abrogated by the fact that
the police did not plan any arrests. The Fourth Amend-
ment protects against unreasonable searches because of
“the right of the people to be secure in their persons”
whether or not an arrest would necessarily follow.
Sc
No. 79-2116 5
Violations of a person’s “cherished personal security”*
whether engaged in by violent antisocial elements of our
society or by overzealous, insensitive police must be con-
demned. Both should be dealt with in accordance with
legal consequences that foster deterrence.
FAIRCHILD, Chief Judge, dissenting. I voted for
rehearing en banc and surely join in Judge Swygert’s
concern whether the dogs were used in a manner which
itself without further individual intervention invaded
protected privacy rights. I further question whether the
record demonstrates that the responses of the dogs were
sufficiently reliable indicators of the presence of contra-
band to constitute probable cause justifying the in-
dividual searches. After all, it appears that although the
canine response raised suspicion toward 50 students.
only 15 were found to possess contraband. As to plaintiff
Doe, I gather that she probably caused the dog to res-
pond to her because she had been playing that morning
with her own dog which was in heat. I was not, however,
a member of the panel, did not read the briefs on
appeal, nor hear oral argument with o portunity to
question counsel, nor examine the record. P therefore go
no further toward expressing at this stage an opinion on
the merits of the appeal.
Woop, Circuit Judge, dissenting. As I believe this
case raises significant issues with an impact beyond
these particular parties, I respectfully dissent. I join
generally in the concerns expressed by my other dis-
senting colleagues. However, without the benefit of an en
banc hearing, I am reluctant to express an opinion on
the merits of those issues.
* Cupp v. Murphy, 412 U.S. 291. 295 (1973).
6c
6 No. 79-2116
CUDAHY, Circuit Judge, dissenting. Although I do not
feel in a position to express specific views on the merits,
I share in the concerns so eloquently expressed by my
colleagues.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
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