Petition — Goose Creek Consolidated Independent School District v. Horton ex rel. Horton
Supreme Court brief1983
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IN THE
Supreme Court of the Hnited States
OCTOBER TERM, 1982
NO.
GOOSE CREEK CONSOLIDATED INDEPENDENT
SCHOOL DISTRICT,
Petitioner
Vv.
ROBERT HORTON, as next friend of ROBBY HORTON
and SANDRA SANCHEZ, on their own behalf and
on behalf of all others similarly situated,
Respondents
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
REID, STRICKLAND, GILLETTE
& ELKINS
RICHARD A. PEEBLES, P.C.
Attorney for Petitioner
P. O. Box 809
Baytown, Texas 77520
Alpha Law Brief Co., Inc—5606 Parkersburg—Houston, Texas 77036—223-3003
QUESTIONS PRESENTED
1. Whether the use by public school officials of special-
ly trained drug detection dogs to sniff the air near students
constitutes a “search” within the purview of the Fourth
Amendment to the United States Constitution.
2. What standard is applicable to public school officials
in determining the constitutionality of searches of students
made by the officials in the performance of their duties?
3. Whether an appeals court can reverse the denial of
certification of a class by a district judge and can order
certification of a class without finding an abuse of dis-
cretion by the district judge.
TABLE OF CONTENTS
Page
I NE b-bd ns 0 00'80.0000-000506.000065006000604 1
IN 1 in. N50 09 05 06.0:6.0:00.080004s 000000000. 00000008
PEE cet vecdenccarccccscceececvccssensecsionses
Reasons for granting the petition ..................04 045
SE 6 Sven ccccccsenssvacbaveresocecsosevercoene 15
Appendix A... cece c cece ce eeeeeeee eeeeeeeeeues la
PE ED. kt cccveecorccsctcrreesessesséseesecneens 36a
ee ee ay eee
TABLE OF AUTHORITIES
CASES Page
Bellnier v. Lund, 438 F.Supp. 47 (N.D.N.Y., 1977) ...... 7,11
Doe v. Renfrow, 475 F.Supp. 1012 (N.D. Ind., 1979) af-
firmed in part, reversed in part 631 F.2d 91 (7th Cir.
1980), cert. den. 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.
ON OOO COMED si cccccccvcccccctccsctvecsusnes 9, 10, 12, 13, 15
Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304
COU Rl, BUCED So ciccbabeccrcrscvcecriseccnscceses 13,14
Gonzalez v. Southern Methodist University, 536 F.2d 1071
(Sth Cir, 1976), cert. den, 430 U.S. 987, 97 S.Ct. 1688,
GF Ramen GOs CASTER cadens concicvcsrsovckcscssonrs 14
Hailey v. Brooks, 191 S.W. 781 (Tex. Civ. App.—Ft, Worth
Ses Oe GED. oo 06h 000 0000kss bes etess st carsbccrece 12
Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. $15, 85 L.Ed. 22
CEU -EnuNe’ tad deddecacapes caehhs Veawbaneeseees 14
M. v. Board of Education Ball-Chatham, C.U.S.D. No. 5,
O20 PA. B08 TED, We. VOTE) ccc ccavisdncccccevcs 12
Mercer v. State, 450 S.W.2d 715 (Tex. Civ. App.—Austin
| AP rrr er ry Tore rre Tere 12
Moore v. Student Affairs Committee of Troy State Univer-
sity, 284 F.Supp. 725 (M.D. Ala. 1978) ..........6. 13
People v. D., 34 N.Y.2d 483, 358 N.Y.2d 403, 315 N.E.
Pe Se REPOOD Sa birkuccodedtabecesteasedaksseess 13
People v. Mayberry, 644 P.2d 810, 182 Cal. Rptr. 617
ROUEN cumna'ce 0653s 1650 Rs Unused baneee eee Phiae eens 10
People v. Overton, 24 N.Y.2d 522, 301 N.Y.S.2d 479, 249
nt ce TEPOne covcnnessdeecdenannasesabonas ss 13
United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975) .. 9
United States v. Burns, 624 F.2d 95 (10th Cir. 1980) .... 9
United States v. Fulero, 162 U.S. App. D.C. 206, 498 F.2d
Pe COED ‘pecdbeneetnebe dep ewasbacasaseeesedeees 9
United States v. Goldstein, 635 F.2d 356 (Sth Cir. 1981) 9
United States v. Klein, 626 F.2d 22 (7th Cir. 1980) .... 9
United States v. Solis, 536 F.2d 880 (9th Cir. 1976) .... 9
Jnited States v. Venema, 563 F.2d 1003 (10th Cir. 1977) 9
United States v. Viera, 644 F.2d 509 (Sth Cir. 1981) .... 9
United States v. Walzer, 682 F.2d 370 (2d Cir. 1982) .... 10
CONSTITUTION AND STATUTES
United States Constitution, Fourth Amendment ....7, 8,9, 10, 11,15
2
2B US.C. 12541) ..ccccccccccccvvcccccccccvcccccens
IN THE
Supreme Court of the Hnited States
OCTOBER TERM, 1982
NO. ___
GOOSE CREEK CONSOLIDATED INDEPENDENT
SCHOOL DISTRICT,
Petitioner
Vv.
ROBERT HORTON, as next friend of ROBBY HORTON
and SANDRA SANCHEZ, on their own behalf and
on behalf of all others similarly situated,
Respondents
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
GOOSE CREEK CONSOLIDATED INDEPENDENT
SCHOOL DISTRICT petitions for a Writ of Certiorari
to review the judgment of the United States Court of
Appeals for the Fifth Circuit in this case.
OPINION BELOW
The opinion of the Court of Appeals (App. A, infra,
la-35a) is reported at 690 F.2d 470,
2
JURISDICTION
The original judgment of the Court of Appeals was
entered on June 1, 1982. A petition for rehearing was
granted and a new decision substituted for the original
decision on November 1, 1982. A petition for rehearing
was then denied on December 14, 1982 (App. B, infra,
36a-38a). The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
STATEMENT
On April 2, 1980, Respondents filed their original
Complaint in this matter alleging violations of their
Fourth, Fifth and Fourteenth Amendment rights by Peti-
tioner’s use of trained drug detecting dogs to sniff near
the persons and property of students located within the
Petitioner School District. A request was made in such
complaint for a class certification, with such class to
include all students currently enrolled in the School Dis-
trict. Petitioner answered on May 2, 1980, and filed a
Motion to Dismiss and a Motion for Summary Judgment
with the District Court. On June 23, 1980, Respondents
filed a Cross Motion for Summary Judgment, and on
July 6, 1980, filed a Motion for Class Certification, both
of which Motions were responded to by Petitioner. A
hearing was held by Judge Robert O’Conor of the South-
ern District of Texas, Houston Division, on October 29,
1980, wherein Respondents’ Class Certification Motion
was heard, along with argument by both Respondents and
the Petitioner relative to the issues involved in this cause
of action. On May 1, 1981, Judge O’Conor entered his
Memorandum and Order, together with Final Judgment
in this case denying Respondents’ Motion for Class Cer-
3
tification and granting Petitioner's Motion for Summary
Judgment.
Respondents filed a Notice of Appeal on May 28, 1981,
to the Final Judgment entered by the District Court.
The Court of Appeals affirmed in part and reversed
in part the District Court decision and remanded this
cause for trial on the issue of the reliability of the dogs’
reaction as the basis for searches of student lockers and
automobiles.
1. This is a case involving the Goose Creek Independ-
ent School District’s use of specially trained drug detector
dogs in the public schools of such District. The District
covers a geographical area of approximately 128 square
miles in and around Baytown, in eastern Harris and west-
ern Chambers counties, Texas. It serves approximately
15,400 students through eleven (11) elementary schools,
four (4) junior schools, two (2) high schools and two
(2) special schools. In 1978 in response to a growing
alcohol and drug abuse problem in the schools, the Board
of Trustees of the District approved a drug prevention
program to be implemented in the 1978-1979 school year.
(Rec. 123-124). This program was developed through
consultation with other districts who had experience in
the use of such program, and was put into operation after
a series of community meetings were held in the District
informing the patrons of the District’s intent and securing
general public support for such program. Part of the pro-
gram includes the use of specially trained dogs which are
used on a random basis in the junior schools and high
schools in the District. The specially trained dogs are not
used to sniff in the elementary schools on a regular basis,
although they are brought into such schools for special
4
assembly programs as an aid to educating elementary
school youngsters on the dangers of the use of drugs and
alcohol.
The dogs used by the District are trained and handled
by Security Associates International, Inc., a Houston Se-
curity Services firm, which provides trained drug detector
dogs for other school districts. This firm chooses non-
aggressive dogs and trains them to “alert” on approximate-
ly 60 different illicit substances. The dog is then taken
to a school campus where it is allowed to sniff the air
around parked automobiles, student lockers and students,
while the students are in their classrooms. When the
dog’s handler receives the “alert” which may be mani-
fested in several ways, he notifies the school officials and
the suspected vehicle, locker or person is searched for
the controlled substance. When an “alert” is made on a
vehicle or locker, the student who has control of such
vehicle or locker is notified to come and unlock such
vehicle or locker and is usually present when the search
is made. (Rec. 124).
When a student is alerted on, he or she is taken to the
administrator’s office, and a body search is conducted.
This search is confined to outer-garments, pockets, belts,
collars, shoes, and socks. There are no strip searches
made by the District. When contraband is found in viola-
tion of the School District’s policy, the student’s parents
are notified and an attempt is made to have one or both
of the parents present when the student is brought before
the building administrator to present his side of the con-
troversy. If a student is found to be in violation of the
drug policy, after such hearing by the building adminis-
trator, the student is assigned to the District’s Special
eM eae Sy. Mas
Bee a a a oe
5
Assignment Clinic for up to ten (10) days and is given
an option of seeking outside third party counseling ap-
proved by the District. If the student refuses third party
counseling, then the administrator in charge may recom-
mend to the superintendent that the student be suspended
from school. If the counseling alternative is chosen, a
letter agreement is signed by the student and parents,
setting out the counseling agreement and the consequences
of failure to comply with such counseling arrangement.
If the student chooses not to seek counseling or if after
seeking counseling refuses to complete such counseling
requirements, then a recommendation is made for suspen-
sion from school and the student and parents are notified
of their due process rights and procedures for hearing
before the Board of Trustees. If a student is found in
violation of the District’s drug policy on a subsequent
occasion, the recommendation is made that the student
be suspended from school for the remainder of the school
term. This suspension is done after the student is given
an opportunity for a hearing before the Board of Trustees.
(Rec. 124).
If a student is “alerted on” by the dogs and after a
body search is conducted and no contraband is found,
then the student is given an apology and is returned to
his or her class. When the dog alerts on an automobile,
the student driver in charge of such automobile is asked
to open the car, and if he or she refuses, the parents are
notified. The District makes an effort to notify students
that a locker is being searched prior to the time of such
search, although on occasion lockers alerted on are search-
ed without consent. Contraband found in lockers or cars
is considered a violation of the school policy and is treated
6
in the same manner as contraband found in the student's
clothing or purse. (Rec. 124).
Individual Respondents Robby Horton, Heather Hor-
ton and Sandra Sanchez were at the time of filing of
Respondents’ Complaint, students in the Goose Creek
Independent School District and were subjected to the
use of the drug detector dogs in the furtherance of the
School District's drug prevention policy. Both Robby
Horton and Sandra Sanchez were alerted on and subse-
quently searched in an administrator’s office. On or about
January 10, 1980, the drug detecting dog alerted on
Sandra Sanchez, and she was asked to come to the build-
ing administrator’s office where she was questioned and
had her purse searched after she placed it on a table
while she was using the telephone. All that was found in
the search of her purse was a small bottle of perfume
and after it was retured to her, she was allowed to return
to class to continue her school work. Robby Horton was
also alerted on and taken to an administrator's office
where he was given an opportunity to call his parents.
He was then asked to empty his pockets and he complied.
Subsequently, his socks and lower pant legs were searched
and no contraband was found and he was sent back to
class. Heather Horton has never been subjected to a
search by any building administrator or official of the
District, although she has been in class where the drug
detector dogs have been used to inspect for the presence
of contraband drugs or alcohol. (Rec. 124).
2. The district court granted the motion for summary
judgment of Petitioner and denied Respondents’ motion
for class certification. That court found that the use of
dogs by Petitioner constituted a search within the pur-
7
view of the Fourth Amendment; however, reviewed in
light of the in loco parentis doctrine, the court found
the program used by Petitioner to be reasonable and non-
violative of the Fourth Amendment rights of the Peti-
tioner’s students.
3. The court of appeals affirmed the district court's
decision in part, reversed in part, and remanded. The
court held that “. . . sniffing by dogs of the student's
persons in the manner involved in this case is a search
within the purview of the fourth amendment,” and exam-
ined the reasonableness of the program in light of the
special situation involved, i.e., the educational atmosphere
which school officials are charged to maintain while im-
pressionable students are in their care. The court noted
the widespread acceptance of the in loco parentis doctrine
as granting broad discretionary powers to school officials,
but rejected the use of the doctrine in this instance on
the apparent basis that school officials were not concerned
solely with the best interests of individual students, but
rather made decisions based upon the good of the student
population as a whole. Thus, the court reasoned the school
situation was much like an airport or border case, where
only minimal intrusions by law enforcement officials on
otherwise protected privacy are allowable.
In determining whether Petitioner’s use of drug-detect-
ing dogs to sniff near students was a reasonable intrusion
on the students’ privacy, the court applied a standard
formulated in the case of Bellnier v. Lund, 438 F.Supp.
47 (N.D.N.Y., 1977), and found the use of canines to
sniff the air near students to be unconstitutional in the
absence of individualized suspicion as to a particular
student.
While the court found that the use by Petitioner of dogs
to sniff near student lockers and automobiles was not a
search within the meaning of the Fourth Amendment, the
court remanded to the district court for trial on the issue
of whether the dogs were reliable to the point that their
alert could give rise to a reasonable suspicion that con-
traband was currently present in the automobile or locker,
which suspicion would excuse the requirement of a search
warrant pursuant to Fourth Amendment standards.
Finally, the court of appeals examined the district
court’s action in denying class certification to the Re-
spondents. Although the court of appeals made no explicit
finding of an abuse of discretion on the part of the district
court in its denial of certification, the court nevertheless
ordered certification of a class to be represented by the
Respondents.
REASONS FOR GRANTING THE PETITION
The court of appeals’ holding that the sniff of a drug-
detecting dog near students constitutes a search within
the purview of the Fourth Amendment is in direct conflict
with the decision of the only other court of appeals to
consider that question. This case presents important ques-
tions concerning the constitutional standards by which
public school officials are bound in their efforts to provide
a safe environment conducive to education, particularly
with regard to the use by school officials of drug-detecting
dogs to sniff near students, automobiles and lockers on
school premises.
1. While conceding that the majority view by the
courts was that the sniffing of a dog is not a search, the
court below distinguished the numerous decisions regard-
9
ing dog sniffs by noting that the decisions cited all in-
volved canine sniffs of inanimate objects.’ The court thus
found that while the use by the Petitioner of dogs to
sniff near student lockers and automobiles was not a
search subject to Fourth Amendment standards, the ques-
tion as to whether the sniff of a drug-detecting dog near
students was a search was a case with few precedents,
and required substantial analysis.
The court below declined to follow the only existing
federal appeals court precedent on the issue, the decision
in Doe v. Renfrow, 475 F.Supp. 1012 (N.D. Ind., 1979)
affirmed in part, reversed in part 631 F.2d 91 (7th Cir.
1980), cert. den. 451 U.S. 1022, 10i S.Ct. 3015, 69
L.Ed.2d 395 (1981).
The Renfrow court was faced with a question identical
to the one presented herein, as it also involved the use
by public school officials of drug-detection dogs in school
classrooms. In holding that the use of the dogs to sniff
near students did not constitute a search of the individual
students within the purview of the Fourth Amendment,
the district court in Renfrow stated (475 F.Supp. at
1019):
“.. . the presence of the dog and its trainer within
the classroom, also at the request and supervision of
the school officials, was only an aid of that official's
observation of students. Finally, for purposes of this
1. See United States v. Goldstein, 635 F.2d 356 (Sth Cir. 1981);
United States v. Viera, 644 F.2d 509 (Sth Cir. 1981); United States
v. Fulero, 162 U.S. App. D.C. 206, 498 F.2d 748 (1974); United
States v. Bronstein, §21 F.2d 459 (2d Cir. 1975); United States v.
Solis, 536 F.2d 880 (9th Cir. 1976); United States v. Venema, 563
F.id 1003 (10th Cir. 1977); United States v. Burns, 624 F.2d 95
(10th Cir. 1980); and United States v. Klein, 626 F.2d 22 (7th Cir.
1980) (all holding that the sniff of a drug detection dog does not
constitute a search).
10
section, the sniffing of a trained narcotic detecting
canine is not a search. Since no search was per-
formed up until the time the dogs alerted, no war-
rant was necessary for the initial observation by
the school officials.”
The court below noted that “. . . the Renfrow decision
has been universally criticized by the commentators.”
(App. A, infra, 6a, 11a), and chose to determine the issue
of whether the dog sniffs in question were searches by
examining the degree of intrusiveness of the sniff.? As
the court determined that odors emanating from the bodies
of individuals are not routinely exhibited to the public
in such a manner as to justify investigation without in-
dividual suspicion, and as the court disagreed with the
finding of the district court concerning the degree of
intrusion involved in a dog sniff, it was held that the
sniff of a dog near students is a search and is governed
by Fourth Amendment restrictions.
The court of appeals’ holding is clearly without prece-
dent and ignores the special situation presented by the
possession of drugs by students in public schools. While
a student possessing drugs surely has a fervent desire not
to expose the odor of the drugs to the public, prior prece-
dent holds that the escape of odor into the air precludes
one from refusing to allow the public to examine that
odor. United States v. Walzer, 682 F.2d 370 (2d Cir.
1982); People v. Mayberry, 644 P.2d 810, 182 Cal.
Rptr. 617 (1982). The mere fact that the odor in ques-
2. The court of appeals implicitly, though not expressly, rejected
the Doe v. Renfrow holding, as it could only find as a possible dis-
tinguishing factor that “there was apparently no evidence in Renfrow
that the dogs actually touched the students, while the dogs in the
GCISD program put their noses right »p against the children’s
bodies.” (App. A, infra, 11a).
11
tion emanates from the clothing of an individual in a
school classroom rather than from an individual’s luggage
should have no bearing on whether the sniff of the odor
in public airspace by a trained drug-detection dog is a
search. The degree of intrusion in both cases is minimal.
2. Subsequent to its holding that the sniff of drug-
detection dogs near students constitutes a search within
the purview of the Fourth Amendment, the court of ap-
peals analyzed the Petitioner’s program to determine
whether the sniffs were “reasonable” under the circum-
stances. The court rejected the in loco parentis doctrine
and a plethora of decisions recognizing the special situa-
tion presented by the public school environment, choosing
instead to equate the school environment with borders
and airports, in which minimal intrusions upon individual
privacy are allowed. This analysis led the court to adopt
a rule espoused in the case of Bellnier v. Lund, 438 F.
Supp. 47 (N.D.N.Y. 1977), and to hold that canine
sniffs near students were unconstitutional absent “indi-
vidualized suspicion” on the part of school officials. The
court also found that warrantless searches of student
lockers and automobiles were allowable after alert by
drug-detection dogs only if the dogs are proven to be
reliable to the point that their alert provides reasonable
suspicion that drugs are currently present in the place
sought to be searched. The court remanded to the district
court on the issue of the reliability of the particular dogs
used by the Petitioner.
In requiring individualized suspicion on the part of
school officials before any type of search of students can
be conducted, the court of appeals’ decision is in clear
contravention of accepted case law relating to the stand-
12
ards by which acts of school officials are reviewed. Again,
the decision addressing this issue which is most on point
with the facts herein presented is Doe v. Renfrow, supra,
in which school officials in an Indiana school district
maintained a program whereby police, along with trained
drug-detection dogs, conducted an extensive drug investi-
gation in the classrooms of junior and senior high schools
in the district. In deciding the question squarely presented
to this Court, the district court in Doe v. Renfrow found
that a “reasonable cause to believe” standard was proper
in determining the legality of a search conducted by school
Officials in an academic setting, stating:
“School officials fulfilling their state empowered
duties will not be held to the same standard as law
enforcement officials when determining if the use
of canines is necessary to detect drugs within the
schools. This lesser standard applied 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.”
475 F.Supp. 1012, at 1021. The court’s holding in Doe
v. Renfrow explicitly recognized the in loco parentis doc-
trine, which generally holds that school officials effectively
assume the responsibilities and privileges of a parent to
the students in their charge, particularly with respect to
their maintenance of a proper educational environment
within the public school system.’ Too, the Renfrow deci-
sion confirmed prior case law which applied less restric-
3. The doctrine of in loco parentis as applied to the academic
environment has found acceptance in both federal and state courts.
See M. v. Board of Education Ball-Chatham, C.US.D. No. §, 429
F.Supp. 288 (S.D. Ill. 1977); Hailey v. Brooks, 191 S.W. 781 (Tex.
Civ. App.—Ft. Worth 1916, no writ); Mercer v. State, 450 S.W.2d
715 (Tex. Civ. App.—Austin 1970, no writ).
13
tive constitutional standards to actions of school officials
in their official capacities.*
The court of appeals’ decision to reject the in loco
parentis doctrine (App. A, infra, 10a) and to instead
equate any searches in the public school environment
with border and airport searches is inappropriate. As in
Doe v. Renfrow, supra, there are no criminal sanctions
for students found to be in violation of Petitioner’s drug
policy. Students are not summarily dismissed for drug
violations. Counseling is encouraged and provided for
students with drug-related problems, and suspension from
school is imposed only after repeated violations of school
policy by a student. The court below would apply a standard
for the conduct of searches of students that is more restric-
tive than standards for searches by law enforcement of-
ficials seeking criminal indictments. To require school
officials, largely untrained in drug enforcement tactics,
to act in an attempt to protect the health and safety of
students in their care only after they have determined that
they possess “individualized suspicion” that a student
possesses drugs effectively creates an unattainable stand-
ard and contravenes well-settled law relating to the public
school environment.
3. The court of appeals found that class certification
in this cause is mandated, despite the absence of any
finding of an abuse of discretion on the part of the trial
judge in denying certification. In so holding, the court
below ignored the precedents of Doninger v. Pacific
Northwest Bell, Inc., 564 F.2d 1304 (9th Cir. 1977)
4. See Moore v. Student Affairs Committee of Troy State Uni-
versity, 284 F.Supp. 725 (M.D. Ala. 1978); People v. Overton, 24
N.Y.2d 522, 301 N.Y.S.2d 479, 249 N.E.2d 336 (1966); People v.
D., 34 N.Y.2d 483, 358 N.Y.2d 403, 315 N.E.2d 466 (1974).
14
and Gonzalez v. Southern Methodist University, 536 F.
2d 1071 (Sth Cir. 1976), cert. den. 430 U.S. 987, 97
S.Ct. 1688, 52 L.Ed.2d 383 (1977), both of which sug-
gest that a clear abuse of discretion by a district judge
in denying certification must be shown before a reversal
is granted.°
Too, the district court was confronted with strong evi-
dence to indicate that there existed antagonism between
one of the purported representatives of the class and the
class, as well as evidence which would raise doubt as
to the adequacy of representation afforded the class by
one of the Respondents,’ either of which conditions would
justify a denial of class certification pursuant to Hans-
berry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22
(1940).
In light of the inability of the court of appeals to
point to any evidence presented to the district court by
Respondents whereby the Respondents could be said to
have met their burden of proof on the issue of class
certification, and in light of the probable antagonism
between the purported class representative and the class,
it was clear error for the court of appeals to reverse the
decision of the district court and order certification.
5. Indeed, the court of appeals recognized the rule set forth in
Doninger and Gonzalez, yet made no finding of an abuse of discretion
on the part of the trial judge. (App. A, infra, 24a).
6. The deposition of Robert Wade Horton, one of the Respondents
herein, indicated that Horton was not aware that he was pr in
his complaint that he was representing other people (Deposition of
Robert Wade Horton, page 14, lines 2-8), that Horton did not know
how many persons he purported to represent (Deposition of Robert
Wade Horton, page 16, lines 4-10), and that of the few members of
the purported class with which he had spoken, he was not in agree-
ment with them as to all of the issues involved in this matter (Depo-
sition of Robert Wade Horton, page 19, lines 18-21).
15
CONCLUSION
The court of appeals has rejected substantial case law
precedent and has entered a decision in direct conflict
with the holding of the Seventh Circuit in Doe v. Renfrow,
supra. In holding that the sniff of drug-detection dogs
near students in public schools is a search within the pur-
view of the Fourth Amendment and that such a search is
unconstitutional absent individualized suspicion, the court
below has imposed restrictions on public school officials
more stringent than those imposed upon law enforce-
ment officials who seek to impose criminal sanctions on
drug offenders. If allowed to stand, the decision of the
court of appeals will virtually prohibit the use of drug-
detection dogs to aid school officials in their attempts to
stem the flow of illegal drugs into the academic environ-
ment they are bound to protect.
The petition for a writ of certiorari should be granted.
Respectfully submitted,
, STRICKLAND, ¥e\
/ & ‘ |
RICHARD A. ‘PEEBLES, P.C.
Attorney for Petitioner
P. O. Box 809
Baytown, Texas 77520
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No, 81-2215
Robert HORTON, as next friend of Robby Horton
and Sandra Sanchez, on their own behalf
and on behalf of all others similarly situated,
Plaintiffs-Appellants,
Vv.
GOOSE CREEK INDEPENDENT
SCHOOL DISTRICT
Defendant-Appellee.
Decided November 1, 1982
Appeal from the United States District Court for the
Southern District of Texas.
ON PETITION FOR REHEARING
Before WISDOM, RANDALL and TATE, Circuit
Judges.
PER CURIAM:
The defendant's petition for panel rehearing is granted,
the opinion originally published (677 F.2d 471) in this
case is withdrawn, and the following opinion is substi-
tuted therefor.
This case presents a question of first impression in
this circuit: as a matter of constitutional law, can a
school district, acting in good faith in an effort to deal
with a serious drug and alcohol problem, subject stu-
2a
dents, their lockers, and their automobiles to the ex-
ploratory sniffing of dogs trained to detect certain con-
traband? We must consider the special circumstances
peculiar to the public school environment, the duty of
school officials to protect the minors in their care, the
growing problem of drug and alcohol abuse in the
schools, the students’ interest in the integrity of their
persons and effects, and the importance of demon-
strating to the young that constitutional guarantees are
not only lofty theories but do in practice control our gov-
ernment. Bearing in mind ali these considerations, we
hold that the dogs’ sniffing of cars and lockers does not
constitute a search within the purview of the fourth
amendment. We hold further that the dogs’ sniffing of the
childrens’ persons does constitute a search within the
purview of the fourth amendment, and that in a school
setting, individualized reasonable suspicion is required
in order for the sniffing to be constitutional.
I. PROCEDURAL AND FACTUAL BACKGROUND.
The named plaintiffs, Robby Horton, Heather Horton,
and Sandra Sanchez, brought this action by their next
friend, Robert Horton, seeking to represent all students
enrolled in the Goose Creek Consolidated Independent
School District (GCISD) in a challenge under 42 U.S.C.
§ 1983 to the defendant school district’s canine drug de-
tection program.
The defendant, GCISD, adopted the challenged pro-
gram in response to a growing drug and alcohol abuse
problem in the schools. It contracted with a security serv-
ices firm, Securities Associates International, Inc. (SAI),
that provides dogs (generally Doberman pinschers and
3a
German shepherds) trained to alert their handlers to the
presence of any one of approximately sixty different sub-
stances, including alcohol and drugs, both over-the- coun-
ter and controlled. The defendant conducted assemblies in
the elementary schools to acquaint the choldren with the
dogs and informed students in the junior and senior high
schools of the program. On a random and unannounced
basis, the dogs are taken to the various schools in the
district, where they sniff students’ lockers and auto-
mobiles. They also go into the classrooms, on leashes,
to sniff the students themselves. During their “playtime”
at the schools, the dogs are sometimes taken off their
leashes. When a dog alerts the handler to the odor of an
illicit substance on a student’s person, after the sweep of
the class is completed and the dog and handler have
departed, a school official discreetly asks the student to
leave the class and go to the administrator’s office, where
he is subjected to a search of pockets, purse, and outer
garments.’ When a dog alerts his handler to an auto-
mobile, the student driver is asked to open the doors and
the trunk. If he refuses, the school notifies the parents.
When a dog alerts his handler to a locker, the school
searches the locker without the consent of the student to
whom it is assigned. If the student is found to possess
substances that violate school policy, he may agree to
seek outside counselling; otherwise the administrator may
recommend to the superintendent that the student be
suspended. Second-time violators do not have the option
of counseling.
The named plaintiffs were all subjected to the sniffing
of the canine drug detectors. Two of them, Robby Horton
1. The parties agree that no such intrusive searches as strip
searches or body cavity searches occur.
4a
and Sandra Sanchez, triggered alerts. School officials
questioned Sandra, took her purse, and searched it with-
out her consent. They found a small bottle of perfume,
which they returned to her. Robby was asked to empty
his pockets, which he did. When nothing incriminating
was found, the school officials searched his socks and
lower pants legs but again found no contraband.”
The plaintiffs brought this action, alleging a violation
of the fourth amendment prohibition of unreasonable
searches and seizures and a violation of the fourteenth
amendment prohibition of deprivations of liberty and
property without due process. On a motion for class
certification and cross-motions for summary judgment,
the district court denied certification and held that the
sniffing, although it is a search, is not unreasonable.
Further, it held that reasonable cause is the standard for
searches of students and the property by school officials
acting in loco parentis, and the alert of the dogs provides
reasonable cause for searches of lockers and cars as well
as for searches of the pockets, purses, and outer garments
of students. Finally, the district court held that the pro-
gram does not violate the due process clause, because it
subjects the students to minimal intrusion, humiliation,
and fear. The plaintiffs appeal both on the merits and
on the question of class certification.
Il. THE CONSTITUTIONALITY OF THE
DOG SNIFFING
Although the specific problem presented in this case
is new to the Fifth Circuit, a district court in this circuit
2. We use “contraband” to refer to all substances that the school
forbids students to possess, even if possession violates no law.
5a
and appellate courts for the Seventh and Tenth Circuits
have decided similar cases. In the most recent case,
Zamora v. Pomeroy, 639 F.2d 662 (10th Cir. 1981),
the Tenth Circuit upheld the use of dogs in exploratory
sniffing of lockers. Although the focus of the opinion was
the due process problem presented by the school’s disci-
plinary action, the court did consider the fourth amend-
ment issues. Noting that the school gave notice at the
beginning of each school year that lockers were subject
to being opened and that the school and the student
possessed the locker jointly, the court held that the school
administrator’s duty to maintain an educational atmos-
phere in the school necessitated a reasonable right of in-
spection, even though the inspection might infringe a
student’s rights under the fourth amendment. /d. at 670.
The Seventh Circuit reached the same result on facts
similar to those presented by the GCISD program. In Doe
v. Renfrow, 475 F.Supp. 1012 (N.D. Ind. 1979), op.
adopted on this issue and rev'd on another issue, 631
F.2d 91 (7th Cir.) (per curiam), cert. denied, 451 U.S.
1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981), the
school, with the assistance of the police, used dogs for
general, exploratory sniffing of students. The court held
that the sniff of a dog is not a search, particularly in view
of the diminishing expectations of privacy inherent in a
public school, the school’s right and duty in loco parentis
to supervise students and maintain an educationally sound
environment, and the minimal intrusion involved.
A district court in our own circuit, on the other hand,
reached the opposite result, explicitly rejecting Doe v.
Renfrow. Jones v. Latexo Independent School District,
499 F.Supp. 223, 236 (E.D. Tex. 1980). The Latexo
Independent School District used dogs to sniff both stu-
6a
dents and automobiles. The court granted a preliminary
injunction against the sniffing. In its view, the school
environment was a factor to be considered, but it did not
automatically outweigh all other factors. The absence of
individualized suspicion, the use of large animals trained
to attack, the detection of odors outside the range of the
human sense of smell, and the intrusiveness of a search
of the students’ persons combined to convince the judge
that the sniffing of the students was not reasonable. Since
the students had no access to their cars during the school
day, the school’s interest in the sniffing of cars was mini-
mal, and the court concluded that the sniffing of the cars
was also unreasonable. The result in Jones appears to be
that favored by the commentators, who have been unani-
mous in their criticism of Doe v. Renfrow. See, e.g.,
Gardner, Sniffing for Drugs in the Classroom—Perspec-
tives on Fourth Amendment Scope, 74 Nw.U.L.Rev. 803
(1980); Note, The Constitutionality of Canine Searches
in the Classroom, 71 J. Crim. L & Criminology 39
(1980); Comment, Search and Seizure in Public Schools:
Are Our Children’s Rights Going to the Dogs? 24 St.
Lovis U.L.J. 119, 131-33 (1979); see also Doe v. Ren-
frow, 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395
(1981) (Brennan, J., dissenting from denial of certior-
ari); Doe v. Renfrow, 631 F.2d 91, 93 (7th Cir. 1980)
(Swygert, J., dissenting from denial of rehearing). It is
against the background of this split in authority that we
undertake our own analysis of the question.
The problem presented in this case is the convergence
of two troubling questions. First, is the sniff of a drug-
tecting dog a “search” within the purview of the fourth
amendment? Second, to what extent does the fourth
amendment protect students against searches by school
7a
administrators seeking to maintain a safe environment
conducive to education? On each question, we find an
abundance of precedent but scant guidance.
A. The Canine Sniff as a Search.
Frequent use of drug-detecting dogs by law enforce-
ment officials has led to a great number of cases chal-
lenging the admissibility of the fruits of a canine sniff.’
3. The following list is not exhaustive. United States v. Johnson,
660 F.2d 21 (2nd Cir. 1981); United States v. Viera, 644 F.2d 509
(Sth Cir.), cert. denied, 454 U.S. 867, 102 S.Ct. 332, 70 L.Ed.2d 169
(1981); United States v. Goldstein, 635 F.2d 356 (Sth Cir.), cert.
denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981); United
States v. Sullivan, 625 F.2d 9 (4th Cir. 1980), cert. denied, 450 U\S.
923, 101 S.Ct. 1374, 67 L.Ed.2d 352 (1981); United States v. Klein,
626 F.2d 22 (7th Cir. 1980); United States v. Burns, 624 F.2d 95
(10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d
219 (1980); United States v. Venema, 563 F.2d 1003 (10th Cir.
1977); United States v. Solis, 536 F.2d 880 (9th Cir. 1976); United
States v. Race, 529 F.2d 12, 14 n.2 (ist Cir. 1976); United States
v. Bronstein, 521 F.2d 459 (2nd Cir. 1975); United States v. Fulero,
498 F.2d 748 (D.C. Cir. 1974) (per curiam); Stete v. Morrow, 128
Ariz. 309, 625 P.2d 898 (1981); State v. Martinez, 113 Ariz. 345,
554 P.2d 1272 (1976) (adopting opinion published at 26 Ariz. App.
210, 547 P.2d 62); State v. Quatsling, 24 Ariz. App. 105, 536 P.2d
226 (1975), cert. denied, 424 U.S. 945, 96 S.Ct. 1416, 47 L.Ed.2d
352 (1976); People v. Mayberry, 117 Cal. App. 3d 360, 172 Cal.
Rptr. 629 (1981), superseded, 31 Cal. 3d 335, 182 Cal. Rptr. 617,
644 P.2d 810 (1982); People v. Denman, 112 Cal. App. 3d 1003,
169 Cal. Rptr. 742 (1980); People v. St. George Matthews, 112 Cal.
App. 3d 11, 169 Cal. Rptr. 263 (1980); People v. Nagdeman, 110
Cal. App. 3d 404, 168 Cal. Rptr. 16 (1980); People v. Evans, 65
Cal. App. 3d 924, 134 Cal. Rptr. 436 (1977); People v. Williams,
51 Cal. App. 3d 346, 124 Cal. Rptr. 253 (1975); State v. Mosier,
392 So.2d 602 (Fla. App. 1981); State v. Goodley, 381 So.2d 1180
(Fla, App. 1980); Mata v. State, 380 So.2d 1157 (Fla. App.) (per
curiam), petition for review denied, 389 So.2d 1112 (Fla. 1980);
People v. Campbell, 67 Ill. 2d 308, 10 Ill. Dec. 340, 367 N.E.2d
949 (1977), cert. denied, 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d
538 (1978); People v. Price, 54 N.Y.2d 557, 446 N.Y.S.2d 906, 431
N.E.2d 267 (1981); State v. Rogers, 43 N.C. App. 475, 259 S.E.2d
$72 (1979); State v. Elkins, 47 Ohio App. 2d 307, 354 N.E.2d 716
(1976); State v. Wolohan, 23 Wash. App. 813, 598 P.2d 421 (1979).
From these cases, one proposition is clear and universally
accepted: if the police have some basis for suspecting an
individual of possessing contraband, they may, consonant
with the fourth amendment, use a drug-detecting dog to
sniff checked luggage,’ shipped packages,” storage lockers,”
trailers,” or cars.” While the rationales of these cases are
not the same, the majority view is that the sniffing of the
dog is not a search. See, e.g., United States v. Waltzer,
682 F.2d 370 (2d Cir. 1982); United States v. Bronstein,
521 F.2d 459 (2d Cir. 1975), cert. denied, 424 U.S. 918,
96 S.Ct. 1121, 47 L.Ed.2d 324 (1976); United States
v. Fulero, 498 F.2d 748 (D.C. Cir. 1974). But see, e.g.,
People v. Williams, 51 Cal. App. 3d 346, 124 Cal. Rptr.
253 (1975); cf. People v. Campbell, 67 Ill. 2d 308, 10
Ill. Dec. 340, 367 N.E.2d 949, cert. denied, 435 US.
942, 98 S.Ct. 1521, 55 L.Ed.2d 538 (1978) (characteri-
zation as “search” is not significant; the question is
whether the investigation is reasonable).° Only the Ninth
Circuit has held that the sniffing of objects is a search,
4. See, e.g., Goldstein, supra; Sullivan, supra; Bronstein, supra;
Denman, supra.
5. State v. Elkins, 47 Ohio App. 2d 307, 354 N.E.2d 716 (1976).
6. United States v. Venema, 563 F.2d 1003 (10th Cir. 1977);
State v. Quatsling, 24 Ariz. App. 105, 536 P.2d 226 (1975), cert.
denied, 424 U.S. 945, 96 S.Ct. 1416, 47 L.Ed.2d 352 (1976).
7. United States v. Solis, 536 F.2d 880 (9th Cir. 1976).
8. State v. Martinez, 26 Ariz. App. 210, 547 P.2d 62, op. adopted,
113 Ariz. 345, 554 P.2d 1272 (1976).
9. In reaching that conclusion, however, many of the leading cases
explicitly rely on the existence of some basis for suspicion less than
probable cause, before the police brought in their canine assistants.
See, e.g., Bronstein at 463, 465 (Mansfield J., concurring); Sudlivan,
supra at 11-12; United States v. Klein, 626 F.2d 22 (7th Cir. 1980)
(“This is not a case in which we need confront the thorny problem
of an indiscriminate, dragnet-type sniffing expedition.”).
9a
though it may at times be reasonable. United States vy.
Beale, 674 F.2d 1327 (9th Cir. 1982); United States v.
Solis, 536 F.2d 880 (9th Cir. 1976).
The decision to characterize an action as a search is
in essence a conclusion about whether the fourth amend-
ment applies at all. If an activity is not a search or
seizure (assuming the activity does not violate some other
constitutional or statutory provision), then the govern-
ment enjoys a virtual carte blanche to do as it pleases.
The activity is “excluded from judicial control and the
command of reasonableness.” Amsterdam, Perspectives
on the Fourth Amendment, 58 Minn. L. Rev. 349, 393
(1974). We must analyze the question of whether dog
sniffing is a search in terms of whether the sniffing offends
reasonable expectations of privacy, Katz v. United States,
389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967),
and must look at the degree of intrusiveness of the chal-
lenged action to determine whether it is the type of ac-
tivity that can be tolerated in a free society. Terry vy.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968); see also 1 W. LaFave, Search and Seizure § 2.2
(a) at 234 (1978).
We have already held that the sniffing by dogs of
luggage checked in an airport, United States v. Goldstein,
635 F.2d 356 (Sth Cir.), cert. denied, 452 U.S. 962,
101 S.Ct. 3111, 69 L.Ed.2d 972 (1981), and luggage
checked in a bus terminal, United States v. Viera, 644
F.2d 509 (Sth Cir.), cert. denied, 454 U.S. 867, 102
S.Ct. 332, 70 L.Ed.2d 169 (1981), is not a search,
reasoning that “the passenger’s reasonable expectation
of privacy does not extend to the airspace surrounding
that luggage.” 635 F.2d at 361. We noted that the appel-
10a
lants had released their bags to the custody of the airlines,
thereby relinquishing—at least temporarily—all control
over them. Other circuits have emphasized the minimal
humiliation entailed in dogs sniffing unattended luggage.
E.g., Bronstein, supra.’®
The courts have in effect adopted a doctrine of “public
smell” analogous to the exclusion from fourth amend-
ment coverage of things exposed to the public “view.”
Katz, supra. See also United States v. Ventresca, 380 U.S.
102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (implicit);
United States v. Rivera, 595 F.2d 1095, 1098-99 (Sth
Cir. 1979) (implicit); see generally 1 W. LaFave, Search
and Seizure § 2.2(a) (1978). The courts have reasoned
that if a police officer, positioned in a place where he
has a right to be, is conscious of an odor, say, of mari-
juana, no search has occurred; the aroma emanating from
the property or person is considered exposed to the pubiic
“view” and, therefore, unprotected. From this proposition
the courts have concluded that the sniffing of a dog is
“no different,”’’ or that the dog’s olfactory sense merely
“enhances” that of the police officer in the same way that
a flashlight enhances the officer’s sight.’*
[1] We find Goldstein to be controlling on the ques-
tion of whether the dogs’ sniffing of student lockers in
public hallways and automobiles parked on public park-
ing lots was a search. The sniffs occurred while the ob-
10. All the cases cited in note 3, with the exception of Burns,
invoved unattended property. Burns involved a sniffing investigation
incident to a valid arrest, so the evidence was admissible regardless
of whether the sniffing qualified as a search. Thus the decided cases
do not govern the sniffing of attended property or of persons.
11. See, e.g., Goldstein; Bronstein.
12. See, e.g., Bronstein, supra at 462 & n.3.
lla
jects were unattended and positioned in public view. Had
the principal of the school wandered past the lockers and
smelled the pungent aroma of marijuana wafting through
the corridors, it would be difficult to contend that a search
had occurred. Goldstein stands for the proposition that
the use of the dogs’ nose to ferret out the scent from
inanimate objects in public places is not treated any
differently. We hold accordingly that the sniffs of the
lockers and cars’* did not constitute a search and there-
fore we need make no inquiry into the reasonableness of
the sniffing of the lockers and automobiles.
The use of the dogs to sniff the students, however,
presents an entirely different problem. After all, the fourth
amendment “protects people, not places.” Katz v. United
States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.
2d 576 (1967). Neither Goldstein nor Viera involved
sniffs of persons and therefore they are not controlling.
The Second and Ninth Circuits specifically noted that
people had not been sniffed when they upheld the con-
stitutionality of dogs sniffing objects. Bronstein, supra;
Solis, supra. The Seventh Circuit is the only circuit to
have held that sniffs of school children do not constitute
a search, Renfrow, supra. We note that there was appar-
ently no evidence in Renfrow that the dogs actually touch-
ed the students, while the dogs in the GCISD program
put their noses right up against the children’s bodies.
Furthermore, as we noted above, the Renfrow decision
has been universally criticized by the commentators.”*
13. If anything, one’s expectation of privacy in a car is lower
than in one’s luggage. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464,
41 L.Ed.2d 325 (1974) (plurality opinion), quoted in United States
v. Chadwick, 433 US. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).
14. Gardner, Sniffing for Drugs in the Classroom—Perspectives
on Fourth Amendment Scope, 74 Nw. U. L. Rev. 803 (1980); Com-
12a
[2] The students’ persons certainly are not the subject
of lowered expectations of privacy. On the contrary, so-
ciety recognizes the interest in the integrity of one’s per-
son, and the fourth amendment applies with its fullest
vigor against any intrusion on the human body. In fact,
the Supreme Court has suggested that all governmental
intrusions upon personal security are governed by the
fourth amendment:
In our view the sounder course is to recognize
that the Fourth Amendment governs all intrusions
by agents of the public upon personal security, and
to make the scope of the particular intrusion, in light
of all the exigencies of the case, a central element
in the analysis of reasonableness. Cf. Brinegar v.
United States, 338 U.S. 160, 183 [69 S.Ct. 1302,
1314, 93 L.Ed. 1879] (1949) (Mr. Justice Jackson,
dissenting). Compare Camara v. Municipal Court,
387 U.S. 523, 537 [87 S.Ct. 1727, 1735, 18 L.Ed.
2d 930] (1967). This seems preferable to an ap-
proach which attributes too much significance to an
overly technical definition of “search,” and which
turns in part upon a judge-made hierarchy of legis-
lative enactments in the criminal sphere.
Terry v. Ohio, 392 U.S. 1, 18 n.15, 88 S.Ct. 1868, 1878
n.15, 20 L.Ed.2d 889 (1968). See generally, Gardner,
Sniffing for Drugs in the Classroom—Perspectives on
Fourth Amendment Scope, 74 Nw. U. L. Rev. 803, 848
(1980).
ment, Search & Seizure in the Public Schools; Are Our Children's
Rights Going to the Dogs?, 24 St. Louis U. L. J. 119 (1979); Note,
The Constitutionality of Canine Searches in the Classroom, 71 J.
Crim. L. & Criminology 39 (1980).
15. See also, Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60
L.Ed.2d 447 (1979) (upholding body-cavity searches of prisoners for
security reasons only by a bare 5-4 majority); Schmerber v. Cali-
13a
The circuit courts have unanimously assumed that the
use of magnetometers in airport terminals to detect con-
cealed weapons, an activity far less intrusive than the
use of large dogs to sniff the bodies of children, is a
search, The Fourth Circuit originally held that the mag-
netometer walk-through
is still a search. Indeed, that is the very purpose of
the magnetometer: to search for metal and disclose
its presence in areas where there is a normal exp-
pectation of privacy.
United States v. Epperson, 454 F.2d 769, 770 (4th Cir.),
cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d
334 (1972); see also, United States vy. Albarado, 495
F.2d 799 (2d Cir. 1974); United States v. Cyzewski, 484
F.2d 509 (Sth Cir. 1973); United States v. Slocum, 464
F.2d 1180 (3rd Cir. 1972); United States v. Bell, 464
F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct.
335, 34 L.Ed.2d 258 (1972).
The commentators agree that “the intensive smelling
of people, even if done by dogs, [is] indecent and de-
meaning.” 74 Nw. U. L. Rev. at 850; see also 71 J. Crim.
L. & Criminology at 44. Most persons in our society
deliberately attempt not to expose the odors emanating
from their bodies to public smell. In contrast, where the
Supreme Court has upheld limited investigations of body
characteristics not justified by individualized suspicion,
it has done so on the grounds that the particular charac-
fornia, 384 U.S, 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (uphold-
ing warrantless extraction of blood by a physician only because of
the exigency of the circumstances); Rochin v. California, 342 US.
165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952) (holding that the
forcible pumping of suspect’s stomach violated due process clause of
the fourteenth amendment because it “shocks the conscience’).
l4a
teristic was routinely exhibited to the public, United States
v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67
(1973) (voice exemplars); United States v. Mara, 410
U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (hand-
writing exemplars); Davis v. Mississippi, 394 U.S. 721,
89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (fingerprints).
Intentional close proximity sniffing of the person is of-
fensive whether the sniffer be canine or human. One can
imagine the embarrassment which a young adolescent,
already self-conscious about his or her body, might ex-
perience when a dog, being handled by a representative
of the school administration, enters the classroom specifi-
cally for the purpose of sniffing the air around his or
her person.
We need only look at the record in this case to see
how a dog’s sniffing technique—i.e., sniffing around each
child, putting his nose on the child and scratching and
manifesting other signs of excitement in the case of an
alert—is intrusive. The SAI representative explained that
Doberman pinschers and German shepherds were used
precisely because of the image maintained by the large
dogs. Newman depo. at 16. Plaintiff, Heather Horton,
described what happened when the dog entered the class-
rooms:
Well, we were in the middle of a major French exam
and the dog came in and walked up and down the
aisles and stopped at every desk anc sniffed on each
side all around the people, the feet, the parts where
you keep your books under the desk.
H. Horton depo. at 3. Ms. Horton went on to express
her fear of the large dogs. Jd. at 12, The SAI representa-
15a
tive testified that the dogs put their noses “up against”
the persons they are investigating. Newman depo. at 43.
[3] On the basis of our examination of the record
which indicates the degree of personal intrusiveness in-
volved in this type of activity, we hold that sniffing by
dogs of the students’ persons in the manner involved in
this case is a search within the purview of the fourth
amendment. We need not decide today whether the use
of dogs to sniff people in some other manner, e.g., at
some distance, is a search,
Our decision that the sniffing is a search does not,
however, compel the conclusion that it is constitutionally
impermissible. The fourth amendment does not prohibit
all searches; it only restricts the government to “reason-
able” searches. The reasonableness of the procedure turns
in this case on the school environment, to be discussed
in Part II.B. But the reasonableness is also governed in
part by general fourth amendment principles.
A dog’s sniff of a person, particularly where the dogs
actually touch the person as they do in the GCISD pro-
gram, may be analogous to the warrantless “stop and
frisk” upheld by the Supreme Court on the basis of a
suspicion that fell short of probable cause. Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Confronted with a choice between subjecting a useful and,
indeed virtually indispensable, tool for both the protection
of law enforcement officers and the prevention of crime
to a requirement of probable cause and a warrant or of
giving the police unbridled discretion to stop and frisk
citizens, the Court rejected this monolithic, “all-or-nothing”
view of the fourth amendment. Instead, it recognized a
new category of search and seizure—the minimally in-
16a
trusive stop and frisk—that could be conducted upon a
finding of reasonable suspicion. Since the circumstances
in which a stop and frisk is used preclude obtaining a
warrant, the procedure is exempt from the warrant re-
quirement.
The Court in effect adopted a balancing approach
whereby the intrusiveness of the search is measured
against society’s need for the information. See generally
1 W. LaFave, Search and Seizure §2.2(a), at 236
(1978). Similarly, the courts have upheld the warrant-
less use of magnetometers in light of their minimally in-
trusive character as weighed against the danger of sky-
jacking. E.g., Cyzewski, supra. Because the sniffing in
this case occurred in a school environment, we need not
address the question whether the sniffing of a person in
a non-school setting is sufficiently intrusive to require the
full panoply of fourth amendment protections—probable
cause and a warrant—or whether such sniffing is less
intrusive, requiring only reasonable suspicion. We leave
that question for another day.
B. The Fourth Amendment in the Public Schools.
[4] The courts have encountered substantial difficulty
in accommodating the fourth amendment to the special
situation presented by the public schools, where school
officials have both a right and a duty to provide a safe
environment conducive to education. At one time, it was
not uncommon for a court to view the school official who
searched a student as acting under authority derived from
the parent and therefore as a private party not subject to
the constraints of the fourth amendment. See, e.g., Mercer
v. State, 450 S.W.2d 715 (Tex. Civ. App.—Austin
17a
1970); see generally Buss, The Fourth Amendment and
Searches of Students in Public Schools, 59 lowa L. Rev.
739, 765-67 (1974); Comment, Search and Seizure in
Public Schools: Are Our Children’s Rights Going to the
Dogs? 24 St. Louis U.L.J. 119, 127 (1979). As courts
in most recent cases have decided, we think it beyond
question that the school official, employed and paid by
the state and supervising children who are, for the
most part, compelled to attend,’ is an agent of the
government and is constrained by the fourth amendment.
Accord, Bellnier v. Lund, 438 F.Supp. 47 (N.D. N.Y.
1977); State v. Baccino, 282 A.2d 869 (Del. Super.
1971); State v. Young, 234 Ga. 488, 216 S.E.2d 586,
cert. denied, 423 U.S. 1039, 96 S.Ct. 576, 46 L.Ed.2d
413 (1975); People v. Scott D., 34 N.Y.2d 483, 358
N.Y.S.2d 403, 315 N.E.2d 466 (1974). The Supreme
Court’s application to school officials of other constitu-
tional restraints applicable only to state action compels
that result. See, e.g., Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 89 S.Ct. 733,
21 L.Ed.2d 731 (1969); Goss v. Lopez, 419 U.S. 565,
95 S.Ct. 729, 42 L.Ed.2d 725 (1975); West Virginia
State Board of Education v. Barnette, 319 U.S. 624, 63
S.Ct. 1178, 87 L.Ed. 1628 (1943).
(5, 6] But the decision that school officials are gov-
erned by the fourth amendment does not dictate a holding
that their activity in this case was unconstitutional. The
basic concern of the fourth amendment is reasonable-
16. Tex. Educ. Code Ann. § 21.032 (Vernon Supp. 1982). Given
the public interest in encouraging noncompulsory secondary education
and the social pressures to remain in school, as well as the difficulty
of applying different standards to the 17- and 18-year-olds in the
public school system, our discussion applies equally to those students
not legally compelled to attend school.
18a
ness,'’ and reasonableness depends on the circumstances.
Often the ordinary requirements of the fourth amend-
ment are modified to deal with special situations. See,
e.g., Terry, supra; Marshall v. Barlow's, Inc., 436 U.S.
307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) (adminis-
trative search); Camara v. Municipal Court, 387 U.S.
523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (same);
United States v. Skipwith, 482 F.2d 1272 (Sth Cir.
1973) (airport search to prevent air piracy); Henderson
v. United States, 390 F.2d 805, 808 (9th Cir. 1967)
(border search). The public school presents special cir-
cumstances that demand similar accomodations of the
usual fourth amendment requirements. When society re-
quires large groups of students, too young to be con-
sidered capable of mature restraint in their use of illegal
substances of dangerous instrumentalities, it assumes a
duty to protect them from dangers posed by anti-social
activities—their own and those of other students—and to
provide them with an environment in which education is
possible. To fulfill that duty, teachers and school adminis-
trators must have broad supervisory and disciplinary
powers.’* At the same time, though, we must protect the
17. Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.
2d 889 (1968).
18. Courts usually refer to the basis of these powers as the in
loco parentis doctrine. Under that doctrine, parents were viewed as
ceding their parental powers over and duties to protect the best in-
terests of a child to the school official, who then could act toward
the child in any way that the parent could, exercising the same dis-
ciplinary and supervisory powers. Although the courts no longer view
this doctrine as making the official effectively a private party, they
still explain the broad powers of the school official as derived from
his in loco parentis duties. We cannot accept this view. The law
recognizes broad powers in a parent in part because one can safely
assume that the parent will exercise those powers in the best interests
of the child. The school administrator’s duties, however, are not al-
19a
fourth amendment rights of students. Indeed, constitu-
tional rights in the schools take on a special importance.
“That [the schools] are educating the young ior citizen-
ship is reason for scrupulous protection of constitutional
freedoms of the individual, if we are not to strangle the
free mind at its source and teach youth to discount im-
portant principles of our government as mere platitudes.”
Barnette, supra, 319 U.S. at 637, 63 S.Ct. at 1185.
[7,8] When the school official acts in furtherance of
his duty to maintain a safe environment conducive to edu-
cation,’® the usual accommodation is to require that the
ways exercised with only the child who is being disciplined or searched
in mind. On the contrary, the school official must bear in mind the
interests of all the students committed to his supervision and fre-
quently actions toward one child wil be taken to protect other children
from him. To that extent, it no longer makes sense to view the school
official as the equivalent of a parent. See generally, Mercer v. State,
supra at 720-21 (Hughes, J., dissenting); 59 Iowa L. Rev. at 768;
cf. Young, supra 216 S.E.2d at 592 (school owes students forced to
associate with others a safe environment). Moreover, in a compulsory
education system, see note 16, the parent does not voluntarily yield
his authority over the child to the school, so the concept of delegated
authority is of little use. See generally Ingraham v. Wright, 430 U.S.
651, 662, 97 S.Ct. 1401, 1407, 51 L.Ed.2d 711 (1977); Young, 216
S.E.2d at 592; 74 Nw. U. L. Rev. 803. We agree with most courts
that school officials have special duties with associated powers, but
we prefer not to tie them to the in loco parentis doctrine. instead
we view the school as a special situation, in the same way that the
border or an airport presents a special situation, requiring the courts
to allow some intrusions on otherwise protected privacy.
19. We intimate no opinion as to the standards to be applied
when a school official acts at the request of the police, calls in the
police before searching, or turns over the fruits of his search to the
police. In that situation, when there is some component of law en-
forcement activity in the school official’s actions, the considerations
may be critically different. See, e.g., Picha v. Wielgos, 410 F.Supp.
1214, 1219-21 (N.D. Ill. 1976); State v. Mora, 307 So.2d 317 (La.),
vacated, 423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29, same result reach-
ed on reconsideration, 330 So.2d 900 (La. 1975), cert. denied, 429
U.S. 1004, 97 S.Ct. 538, 50 L.Ed.2d 616 (1976).
20a
school official have “reasonable cause” for his action.
Although the standard is less stringent than that applic-
able to law enforcement officers, it requires more of the
school official than good faith or minimal restraint. The
Constitution does not permit good intentions to justify
objectively outrageous intrusions on student privacy.”° See,
e.g., Bellnier, supra; M. v. Board of Education, 429 F.
Supp. 288, 292 (S.D. Ill. 1977); Baccino, supra; Nelson
v. State, 319 So.2d 154 (Fla. App. 1975). See generally,
Terry, supra. Contra, Young, supra. Thus, though we do
not question the good faith of the GCISD officials in their
attempt to eradicate a serious and menacing drug and
alcohoi abuse problem, we cannot approve the program
on that basis; we must examine its objective reason-
ableness.
[9] At least one case has held that the reasonable
cause standard applicable in the schools requires indi-
vidualized suspicion. Bellnier, supra. There, a teacher
had reason to believe that someone in her class of fifth
graders had stolen three dollars, but had no reason to
suspect any particular pupil. When a search of the coats
and coatroom revealed nothing, the teacher and principal
required each pupil to remove his shoes and empty his
pockets. The two officials then required each student to
step into the washroom and strip to his undergarments.
The court held the search unconstitutional, requiring the
existence of facts giving the official reasonable particular-
ized suspicions as a predicate for a search. Accord, People
v. Scott D., 34 N.Y.2d 483, 358 N.Y.S.2d 403, 315
20. Contra, Stern v. New Haven Community Schools, 529 F.Supp.
31 (E.D. Mich. 1981). The Stern result illustrates the dangers of
focusing on good intentions, for there the court approved the use of
a two-way mirror in a boys’ washroom.
2la
N.E.2d 466 (1974) (dictum). The result in Bellnier is
unquestionably correct, and we find its reasoning to be
equally applicable to the canine sniffing of children. The
intrusion on dignity and personal security that goes with
the type of canitie inspection of the student’s person in-
volved in this case cannot be justified by the need to pre-
vent abuse of drugs and alcohol when there is no indi-
vidualized suspicion, and we hold it unconstitutional.
C. The Further Searches.
[10-13] The plaintiffs urge that, even if the initial
sniffing of the cars and lockers by the dogs is permissible,
the dogs’ reactions do not give the defendant a sufficiently
strong basis for suspicion to justify a further search. The
district court stated that the “generalized perception of a
problem of drug and alcohol abuse” along with the posi-
tive reaction of the dog give the school sufficient cause
to believe that the student occupant or driver has violated
school policy to justify opening the locker or car and
searching it. The court did not, however, make any find-
ing on the reliability of the dogs, and there was no evi-
dence in the record to support such a finding. In fact,
although the representative of SAI asserted that the dogs
were quite reliable, he admitted that there were no com-
prehensive records kept of those incidents when the dogs
reacted positively in the absence of contraband. On this
record, then, we cannot say whether the reaction of the
dogs provided adequate cause for more intrusive searches,
and summary judgment is inappropriate. Fed. R. Civ. P.
56(c). We remand to the district court for development
of the record on that point. The standard enunciated by
the district court, however, was proper: GCISD need not
show that the dogs are infallible or even that they are
22a
reliable enough to give the defendant probable cause;
instead, the dogs must be reasonably reliable. It will not,
however, be enough to show that the dogs are reasonably
reliable in indicating the presence or recent presence of
contraband. If the reaction is to justify a search, it must
give rise to reasonable suspicion that the search will pro-
duce something—i.e., reasonable suspicion that contra-
band is currently present. If the school does have reason-
able cause to suspect the presence of contraband, the ease
with which it can be destroyed or moved presents an
exigent circumstance that excuses the warrant require-
ment, e.g., United States v. Petty, 601 F.2d 883, 890
(Sth Cir. 1979) (alternative holding), cert. denied, 445
U.S. 962, 100 S.Ct. 1649, 64 L.Ed.2d 237 (1980).
Il. THE DUE PROCESS VIOLATION.
The plaintiffs also argue that the use of the dogs vio-
lates their rights under the fourteenth amendment, by de-
priving them of a liberty interest without due process.
Because of our disposition of the fourth amendment issues
arising out of the sniffing of the students, see Part II, we
need not decide whether that practice entails a due pro-
cess violation. The question remains whether the presence
of a dog on campus, and the practice of occasionally
allowing him to play on campus unrestrained by a leash
but supervised by the handler, constitute a violation of
the due process clause.
The dogs trained and provided by SAI are large
animals—usually German shepherds and Doberman pin-
schers, and occasionally Labradors—breeds selected be-
cause the animals are often sold to police forces who,
according to the testimony of the SAI representative, use
these dogs to maintain an image of strength and ferocity.
23a
The individual animals, however, are selected on the basis
of their docility, and SAI has never received a complaint
about the dogs’ injuring anyone in any way.”' The defend-
ant goes to considerable pains to educate the younger
students, who are more likely to be frightened, by intro-
ducing the dogs at assemblies and demonstrating their
friendliness. Furthermore, there is nothing in the record
to indicate that those students who do not wish to join
in the play with the dogs cannot avoid them.**
[14] We recognize that large dogs, particularly those
breeds that are sometimes used as attack dogs, often
engender an irrational fear, and we do question the wis-
dom of perinitting them to roam parts of the campus
unleashed. But, as long as the dogs are carefully selected
for their nonaggressive character, and the handlers super-
vise them during their playtime, we do not think that the
minimal “harassment” arising from their mere presence
on campus rises to the level of a constitutional violation.**
21. According to the representative of SAI, one student was
scratched slightly when he played with one of the dogs, but he
did not register any complaint. One who chooses to play with a large
dog assumes the risk of incurring minor scratches and bruises in the
rough-and-tumble, and we think that the students can differentiate
between an unprovoked attack and an incidental scratch. It is un-
likely that such an incident contributes to the intimidation alleged
by the plaintiffs.
22. We reiterate that we leave undecided whether the use of the
dogs to sniff the students themselves would be a fifth amendment
violation.
23. We have found no authority to the contrary, and the plaintiffs
have cited none. The only cases cited by the plaintiffs deal with the
possible existence of a liberty or property interest in the renewal of
government employment and the possible existence of a liberty in-
terest in one’s reputation. Board of Regents v. Roth, 408 US. 564,
92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Wisconsin v. Constantineau,
400 US, 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). Any humiliazion
arising from the use of the dogs is, we think, limited to the use of
24a
IV. CLASS CERTIFICATION.
The plaintiffs sought to maintain a class action under
Rule 23, Fed.R.Civ.P. 23, requesting the district court to
certify a class of all students currently enrolled in GCISD
schools. The defendant opposed class certification, and
the district court refused to certify the class.
[15, 16] The decision to grant or deny certification is,
as the defendant contends, initially committed to the
sound discretion of the district judge, and the decision
will not be overturned except for abuse of discretion. See,
e.g., Doninger v. Pacific Northwest Bell, Inc., 564 F.2d
1304, 1309 (9th Cir. 1977); Gonzalez v. Southern Meth-
odist University, 536 F.2d 1071 (Sth Cir. 1976), cert.
denied, 430 U.S. 987, 97 S.Ct. 1688, 52 L.Ed.2d 383
(1977); 7 C. Wright & A. Miller, Federal Practice and
the dogs to sniff the persons, which we have invalidated on other
grounds. The mere presence of the dogs on campus is in no way
humiliating; nor does it stigmatize the students, so the cases cited
are factually inapposite. Assuming that the plaintiffs intend to draw
an analogy between their interest in freedom from intimidation and
the interests at issue in Roth and Constantineau, we think that Paul
v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), which
cut back severely the holding of Constantineau, and Roth work
against the plaintiffs. Both require something beyond injury to some
interest of the plaintiff to establish a violation of the due process
clause. Roth required a legitimate claim of entitlement from a non-
constitutional source, such as state law, to establish a protected prop-
erty interest. Similarly, Davis required some change in legal status
to make an injury to reputation a deprivation of a protected liberty
interest, noting that the interests protected by the due process clause
“attain this constitutional status by virtue of the fact that they have
been initially recognized and protected by state law.” 424 U.S. at
710, 96 S.Ct. at 1164 (footnote omitted). The plaintiffs have not
directed our attention to any state law entitlement protecting the
interest they assert. Indeed, the record indicates that in Baytown, the
site of most GCISD, it is not a violation of the leash law for a dog
= be off leash when supervised by a capable individual. See Newman
epo. at 64.
25a
Procedure §§ 1759, 1765 (1972). Nonetheless, the dis-
cretion of the district judge is not without limits; he must
bear in mind the impact of a binding judgment on class
members and the functions of the class action in facilitat-
ing assertion of certain types of claims or defenses and in
avoiding repetitious litigation. And while considering
these factors, he must determine whether the case meets
the four requirements of Rule 23(a):
(1) The class must be so numerous that joinder
of all members is impracticable;
(2) There must be questions of law or fact com-
mon to the class;
(3) The claims or defenses of the representative
parties must be typical of the claims or defenses of
the class; and
(4) The representative parties must fairly and
adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). In addition, the action must fit
within one of the categories of actions described in Rule
23(b).
[17] In this case, the district judge offered no ex-
planation of his denial of certification, stating only that
“bald assertions will not support the requirements of
proof necessary to satisfy Rule 23(a).” Although an un-
explained decision renders review difficult, it need not
preclude affirmance if there are obvious reasons justify-
ing the district court’s decision. See, e.g., Dussouy v. Gulf
Coast Investment Corp., 660 F.2d 594, 597 (Sth Cir.
1981); Rhodes v. Amarillo Hospital District, 654 F.2d
1148, 1153-54 & n. 8 (Sth Cir. 1981); see also Wetzel
v. Liberty Mutual Insurance Co., 508 F.2d 239, 245 n.6
26a
(3rd Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415,
44 L.Ed.2d 679 (1975). The cases cited by the district
judge suggest that he denied certification because of his
concern that the interests of the named plaintiffs may
be antagonistic to those of some members of the pro-
posed class.** East Texas Motor Freight v. Rodriguez,
431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977);
Aiken v. Neiman-Marcus, 77 F.R.D. 704 (N.D. Tex.
1977). As the defendant argues, many students and
parents may support the program as a potentially effective
means of combating a serious problem of drug and alco-
hol abuse.
The district court identified correctly the cause for
concern here as the adequacy of the named plaintiff, for
it is clear that the case satisfies the other prerequisites to
a class action.” First, the class includes 15,400 members
—all students enrolled in GCISD who are subject to the
canine sniff searches. Even though the class members
reside in a relatively small geographic area, the number
renders joinder impracticable. Fed. R. Civ. P. 23(a)
(1). Second, there are common questions of law and fact,
including how the school district conducted the sniffing
procedures and the subsequent body searches, whether
the sniffing constitutes a search, and, if so, whether that
search is unreasonable. Fed. R. Civ. P. 23(a)(2). Third,
the claims of the named plaintiffs are typical of those of
24. The judge may have thought that the plaintiffs simply failed
to meet their burden of proof. As our discussion will show, we dis-
agree.
25. Technically, only the requirements of section (a) of Rule 23
are “prerequisites” to a class action, and section (b) describes the
categories of classes maintainable as class actions. The discussion
here will treat qualification for a Rule 23(b) category as a pre-
requisite to class actions.
27a
the class, for all three of the named plaintiffs have been
subjected to sniffing, and two of the named plaintiffs have
been subjected to further searches, Fed. R. Civ. P. 23
(a)(3). See note 34, Fourth, the party opposing the
class has acted on grounds generally applicable to the
class, so that injunctive and declaratory relief with re-
spect to the class as a whole are appropriate, Fed. R.
Civ. P. 23(b)(2), leaving only the adequacy of the
named plaintiffs in question, Fed. R. Civ. P. 23(a)(4).
[18, 19] The adequacy requirement mandates an in-
quiry into the zeal and competence of the representative's
counsel and into the willingness and ability of the repre-
sentative to take an active role in and control the litiga-
tion and to protect the interests of absentees, see, e.g.,
Jaurigui v. Arizona Board of Regents, 82 F.R.D. 64 (D.
Ariz. 1979); Klein v. Miller, 82 F.R.D. 6, 8 (N.D. Tex.
1978). Some aspects of this requirement are clearly satis-
fied. The zeal and competence of the named plaintiffs’
counsel, an attorney practicing with a major Houston
law firm and staff counsel of the American Civil Liberties
Union, even had they been open to question at the out-
set, can no longer be challenged after their performance
in prosecuting this appeal. Also, we see no reason to
doubt the ability and willingness of the named plaintiffs
and their next friend to participate in and control the
litigation. Although the defendant contends that, at his
deposition, the plaintiffs’ next friend had not read the
complaint and was unaware that he was representing
others, examination of the transcript of his deposition
shows that Horton stated only that he had not read the
particular copy of the complaint presented, and he cate-
gorically stated that he was aware that he was represent-
ing a class. On the whole, Horton’s deposition shows
28a
commendable familiarity with the complaint and with
the concept of a class action. In that sense, the plaintiffs
have established their adequacy to protect the interests
of the class.”°
[20, 21] But the possibility of antagonism*’ within the
class remains. Although the defendant has offered no
proof of disagreement except the assertion that other
parents and students have not complained about the
practice, we see the chance that some class members
support the canine search program as a very real possi-
bility, and apparently the district judge agreed. In many
similar cases, district judges have certified classes with-
out discussing the problems raised by the possibility of
26. We reject the suggestion in the defendant's brief that a puta-
tive representative must present proof of financial resources in order
to meet his burden of proof on the issue of adequacy. The case relied
upon by the defendant holds only that the class opponent may under-
take discovery of the putative representative's financial condition. See
Klein, supra. In the absence of any reason to believe that the named
plaintiffs have inadequate resources and particularly in the light of
their proven ability to litigate and pursue an appeal, we think that
the plaintiffs have met their burden on this issue. See generally Com-
ment, Class Certification: Relevance of Plaintiff's Finances and Fee
Arrangements with Counsel, 40 U. Pitt. L. Rev. 70, 82 (1978).
27. Intra-class antagonism may be analyzed under either Rule
23(a)(4), the adequacy requirement, or Rule 23(a)(3), the typicality
requirement. See 7 C. Wright & A. Miller, Federal Practice and Pro-
cedure §§ 1768, 1769 (1972). The requirements are closely related,
for demanding typicality on the part of the representative helps en-
sure his adequacy as a representative. We prefer to analyze the ques-
tion of intra-class antagonism under the requirement that the repre-
sentative protect adequately the interests of the class rather than
under the requirement that his claims be typical, because each class
member has the claim asserted by the plaintiffs, so the plaintiffs’
claims are typical, but many members do not see it as in their best
interests to assert that claim. The real question then is whether, in
spite of the typicality of their claims, the named plaintiffs can ade-
quately represent the interests of the class, including any interest in
not asserting claims.
29a
antagonistic interests. See, e.g., Lansdale v. Tyler Junior
College, 318 F.Supp. 529 (E.D. Tex.), aff'd on other
grounds, 470 F.2d 659 (5th Cir. 1972) (en banc), cert.
denied, 411 U.S. 986, 93 S.Ct. 2268, 36 L.Ed.2d 964
(1973); Sullivan v. Houston Independent Schoo! District,
307 F.Supp. 1328 (S.D. Tex.), vacated, 475 F.2d 1071
(Sth Cir.), cert. denied, 414 U.S. 1032, 94 S.Ct. 461,
38 L.Ed.2d 323 (1973); Nolop v. Volpe, 333 F.Supp.
1364 (D.S.D. 1971); see also Foster v. Sparks, 506 F.2d
805 (Sth Cir. 1975). In other cases, courts have beer
content simply to observe that unanimity can never be
achieved in large classes and have proceeded on that
basis to certify a class. See Rosado v. Wyman, 322 F.
Supp. 1173, 1193-94 (E.D.N.Y.), aff'd, 437 F.2d 619
(2d Cir. 1970), aff'd mem., 402 U.S. 991, 91 S.Ct. 2169,
29 L.Ed.2d 157 (1971). Yet there is good authority
for denying class certification on the basis of significant
disagreement within the class. See, e.g., East Texas Motor
Freight System, supra, 431 U.S. 395, 405, 97 S.Ct. 1891,
1897, 52 L.Ed.2d 453 (1977) (alternative holding);
Peterson v. Oklahoma City Housing Authority, 545 F.2d
1270, 1273 (10th Cir. 1976); Swain v. Brinegar, 517
F.2d 766 (7th Cir. 1975) (alternative holding), reheard
on merits, 542 F.2d 364 (7th Cir. 1976) (en banc);
Ihrke v. Northern States Power Co., 459 F.2d 566 (8th
Cir.), vacated as moot, 409 U.S. 815, 93 S.Ct. 66, 34
L.Ed.2d 72 (1972); Schy v. Susquehanna Corp., 419
F.2d 1112 (7th Cir.), cert. denied, 400 U.S. 826, 91
S.Ct. 51, 27 L.Ed.2d 55 (1970); Troup v. McCart, 238
F.2d 289 (Sth Cir. 1957) (alternative holding); Gior-
dano v. Radio Corporation of America, 183 F.2d 558
(3rd Cir. 1950). It is true that in several of these cases,
there was hard evidence of real disagreement. In Peterson,
30a
for instance, many of the tenants in a low-rent housing
project had executed leases containing the security de-
posit provision that was the subject of the suit, and the
defendant presented evidence that many of them thought
that the security deposit would benefit members of the
proposed class because it would lead to better care for
neighboring units. Similarly, in East Texas Motor Freight,
the members of the union local that included the class
had voted against the relief sought by the plaintiffs. But
in some cases, a realistic possibility of antagonism, with-
out more, has resulted in a denial of certification. See,
e.g., Swain, supra; Ihrke, supra. And since the burden of
proof on certification issues is on the plaintiff,?* we think
it improper to demand much evidence from the defendant
that a significant number of class members oppose the
plaintiff when it is obvious that a real possibility of
antagonism exists.
We perceive unresolved tension between the cases per-
mitting certification in these circumstances and the lead-
ing case on adequacy of representation for purposes of
binding class members, Hansberry v. Lee, 311 U.S. 32,
61 S.Ct. 115, 85 L.Ed. 22 (1940). In Hansberry, a
number of landowners signed a covenant not to sell or
lease to blacks. The covenant took effect only when signed
by 95% of the landowners. One landowner brought a
class action, on behalf of all the others, to enforce the
covenant against partics who had acquired or asserted
an interest in property formerly owned by one who had
signed the covenant. The court granted enforcement on
the basis of a fraudulent and collusive stipulation that
95% of the landowners had signed. In a second action
28. See, e.g., Aiken, supra at 704; see generally 7 C. Wright &
A. Miller, Federal Practice and Procedure § 1759 (1972).
3la
brought by another landowner relying on the res judicata
effect of the earlier action, the Illinois courts held the
defendant bound by the earlier judgment as a member
of the class. The Supreme Court reversed, holding that
due process precluded binding a party to a judgment when
neither had he had notice and an opportunity to be heard
nor had he been adequately represented. In Hansberry,
the representation in the first action had been inadequate.
As the Court stated:
It is one thing to say that some members of a class
may represent other members in a litigation where
the sole and common interest of the class in the
litigation is either to assert a common right or chal-
lenge an asserted obligation. It is quite another to
hold that all those who are free alternatively either
to assert rights or to challenge them are of a single
class so that any group merely because it is of the
class so constituted, may be deemed adequately to
represent any others of the class in litigating their
interests in either alternative. Such a selection of
representatives . . . does not afford that protection
to absent parties which due process requires.
311 U.S. at 44-45, 61 S.Ct. at 119 (citations omitted).
[22-25] Hansberry, however, cannot be read to forbid
class actions” in every case in which class members dis-
agree. On the contrary:
29. Hansberry, of course, does not directly forbid class actions;
it simply held that some class actions will not bind the class. But
Rule 23(a) is designed to permit certification only in those cases in
which the class can be bound and in which courts in subsequent
actions would hold, consonant with due process, that res judicata
barred any further litigation by class members on the cause of action.
See Fed. R. Civ. P. 23(c)(3) (advisory committee note). Thus
Hansberry indirectly prohibits class actions that will not bind the
class.
32a
... [iJn any conceivable case, some of the members
of the class will wish to assert their rights while
others will not wish to do so. Thus the familiar case
of the stockholders’ derivative suit is almost invari-
ably brought by minority stockholders to challenge
action that a majority of the stockholders approve.
Yet it is routinely regarded as an appropriate class
suit. Another familiar class suit is that in which one
or more taxpayers of a community, suing on behalf
of all, challenge the validity of a proposed public
expenditure. It is difficult to believe that there has
ever been such a case in which a good many of the
taxpayers would not have preferred that their rights
not be enforced, because of their interest in having
the expenditure made. Yet no one has ever doubted
the propriety of bringing such a suit as a class action.
Wright, Class Actions, 47 F.R.D. 169, 174 (1969).
Hansberry holds that class members cannot be bound
solely on the basis of the representative’s membership in
the class if some members disagree, and, along with Rule
23(a), Hansberry directs courts to adopt procedures to
protect the interests of absentees before purporting to
bind them. Thus, the district court here was properly
concerned, for Hansberry mandates concern for adequate
protection of absent class members. But the concern need
not preclude certification. The very existence of the class
procedure suggests a policy in favor of making it avail-
able to litigants when possible. And the important func-
tions served by class litigation—facilitating the assertion
of claims and defenses and protecting the judicial system
from repetitive litigation—also militate in favor of de-
voting some ingenuity to making the class device avail-
able. Rule 23 provides a district judge with great flex-
ibility to adopt any appropriate procedures, issue appro-
priate orders, and invite intervention. See generally Eisen
33a
v. Carlisle, 391 F.2d 555, 563 (2d Cir. 1968). It ex-
plicitly permits him to certify conditionally or to decertify
a class if it becomes apparent that the representation is
inadequate,”’ indicating that judges should err in favor of
certification. See generally 7A C. Wright & A. Miller,
Federal Practice and Procedure § 1785 (1972).
In this case, a variety of techniques was available to
the district judge. For instance, he could have ordered
notice of the action and of the relief requested by the
plaintiff to the other students and parents to be posted
or distributed to the students at the schools, an effective
and relatively inexpensive way to apprise other members
of the litigation and to invite intervention to challenge
the representation or to oppose the named plaintiffs.”’
Those who chose not to intervene would have received
the notice and opportunity to be heard that fulfills the
requirements of Hansberry. In addition, the trial judge
could have certified the class conditionally, before con-
sidering the merits of the summary judgment motions,
to provide time for disagreement among class members
to come to his attention.
(26, 27] We think it unnecessary to undertake these
procedures in this particular case, although their use
might increase the protection of the absentees, for we
think that the parties in this case protected the interests
of all absentees, as required by Hansberry."* Though some
30. Fed. R. Civ. P. 23(c)(1).
31. Cf. Snyder v. Board of Trustees, 286 F.Supp. 927, 931 (N.D.
Ill. 1968) (inviting dissenting members to intervene to request modi-
fication of the judgment or exclusion from the class).
32. A second consideration supporting our decision is that the
absentee members will not be much better protected from the effect
of the decision if we deny certification. In a case like this one, the
34a
members may disagree with the named plaintiffs, their
position has been asserted energetically and forcefully
by the defendant, which has argued that the school ad-
ministration must be able to use these searches to combat
a serious drug problem. Accord, Dierks v. Thompson,
414 F.2d 453, 457 (1st Cir. 1969); Sturdevant v. Deer,
73 F.R.D. 375 (E.D. Wis. 1976); Rota v. Brotherhood
of Railway, Airline & Steamship Clerks, 64 F.R.D. 699
(N.D. Ill. 1974); see generally Developments in the Law
—Class Actions, 89 Harv. L. Rev. 1318, 1476, 1481
(1976). In many cases, we would hesitate to rely on the
opponent of the class to represent the views of dissenting
class members. Hansberry itself illustrates all too clearly
the dangers of collusion in such a case, for the court in
the initial action there could have viewed the defendant
landowner as the protector of the interests of all land-
Owners opposing enforcement of the covenant. But in
this case, the defendant vigorously opposed certification.
In such circumstances, the possibility of collusion is virtu-
ally nil, and we can rely on the defendant to present to
the court the arguments supporting the contention of any
dissident absentees that the sniffing is not an unconstitu-
tional search.** Consequently, we direct that a class of
stare decisis effect of our decision that the sniffing procedures as they
relate to the students are unconstitutional will, as a practical matter,
put an end to all searches. See /hrke, supra; Snyder, supra; Rosado
v. Wyman, 322 F.Supp. 1173, 1194 (E.D.N.Y. 1970), aff'd, 437 F.2d
619 (2d Cir.), aff'd mem, 402 U.S, 991, 91 S.Ct. 2169, 29 L.Ed.2d
157 (1971); 7 C. Wright & A. Miller, Federal Practice and Procedure
§ 1771 (1972); see also Bailey v. Patterson, 323 F.2d 201 (Sth Cir.
1963), cert. denied, 376 U.S. 910, 84 S.Ct. 666, 11 L.Ed.2d 609
(1964); see generally Developments in the Law—Class Actions, 89
Harv. L. Rev. 1318, 1486-87 (1976).
33. There may also be disagreement among class members over
appropriate relief. On that issue, we cannot depend on the defendant
35a
all students enrolled in GCISD be certified on the ques-
tion of the constitutionality of the searches.”*
Vv. CONCLUSION.
We conclude that the use of dogs in dragnet sniff-
searches of the students of GCISD is unconstitutional, but
that the use of the dogs in similar dragnet sniffing of
lockers and cars is not, and we direct the district court
to grant relief by appropriate declaration and injunction.
Although the use of the dogs in dragnet sniffing of lockers
and cars is permissible, we must remand to the district
court for the case to proceed to trial on the reliability
of the dogs’ reactions as the basis for further searches.
We also direct certification of a class on the issue of the
constitutionality of the practices.
AFFIRMED in part, REVERSED in part, and RE-
MANDED.
to represent the views of all absentees. As a result, we direct certifi-
cation on the issue of liability only, a procedure explicitly provided
by Rule 23(c)(4)(A).
34. The defendant suggested in the district court but has not
argued before us that the case was moot as to Robby Horton and
Sandra Sanchez, who were seniors when the complaint was filed.
Robby did not graduate before the district court decision, but pre-
sumably he and Sandra have both graduated, and Heather is cur-
rently a junior. Even if the certification in this case does not “relate
back” to the filing of the complaint, Sosna v. Jowa, 419 US. 393,
402 n.11, 95 S.Ct. 553, 559 n.11, 42 L.Ed.2d 532 (1975), a question
we need not and do not decide, at the time of certification Heather
is still a member of the class she seeks to represent. /d. 419 US. at
402, 95 S.Ct. at 558. Her claims are typical, for her person as well
as her locker and automobile are currently subject to sniffing and,
if she or her property triggers an alert, the defendant's policy requires
a further search.
36a
APPENDIX B
UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT
NO. 81-2215
Robert HORTON, as next friend of Robby Horton
and Sandra Sanchez on their own behalf and on
behalf of all others similarly situated,
Plaintiffs-Appellants,
Vv.
GOOSE CREEK INDEPENDENT SCHOOL
DISTRICT,
Lefendant-Appellee.
Decided December 14, 1982
Appeal from the United States District Court for the
Southern District of Texas.
ON SUGGESTION FOR REHEARING
EN BANC
(Opinion November 1, 1982, 5 Cir., 1982,
690 F.2d 470)
Before WISDOM, RANDALL and TATE, Circuit
Judges.
PER CURIAM:
Treating the suggestion for rehearing en banc as a peti-
tion for panel rehearing, it is ordered that the petition for
37a
panel rehearing is DENIED. No member of the panel nor
Judge in regular active service of this Court having re-
quested that the Court be polled on rehearing en banc
(Rule 35, Federal Rules of Appellate Procedure; Local
Fifth Circuit Rule 16), the sugestion for rehearing en
banc is DENIED.
In its suggestion for rehearing en banc, the defendant
complains that we have established a standard of reli-
ability to be met by the drug-detecting dogs which is
“clearly unattainable.” The defendant contends that we
“would require that a dog somehow be trained to alert
only when it is reasonably certain that drugs are on the
studeni’s person, although the drugs are not visible and
can be detected only by aroma.”
The defendant has misconstrued our opinion. We did
not say that the defendant must establish that there is a
reasonable certainty that contraband is present in the
lockers or cars or even that there is probable cause to be-
lieve that contraband will be found. Instead, we remanded
the case to the district court for an evaluation of the
reliability of the dogs so that the trial court might deter-
mine whether’s a dog’s alert in fact gives rise to a reason-
able suspicion that contraband is currently present.
This is the kind of determination that can be made on
the basis of evidence concerning the dogs’ performance,
and perhaps by other methods. If a dog alerts 100 times
1. The defendant mentions “persons” but refers to 690 F.2d at
482 which deals with the further searches of the cars and the lockers.
Since we held that the dogs could not sniff the children absent some
form of individualized suspicion, we did not reach the question of
when a further search would be justified after a dog had alerted on
a person.
38a
and there is no contraband on ninety of those occasions,
then an alert conceivably might not arouse a reasonable
suspicion. On the other hand, if a dog occasionally alerts
because contraband was formerly, but is no longer present,
we cannot say in the absence of a fully developed record
that the defendant has not met the test. The number of
times that a dog alerts when contraband is no longer
present, as well as the number of times when it alerts on
a perfectly harmless substance, are all factors that go into
the determination of reliability. It would be inappropriate
at this point for us to say precisely what is necessary to
create a reasonable suspicion justifying a search in the
absence of a record on this subject or findings by the
district court concerning the dogs’ reliability.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.