Opposition Brief — Hearn v. Board of Public Education for Savannah

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No. 99-1477 | a

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IN THE |

s

Supreme Court of the United States

SHERRY HEARN,

Petitioner,

Vv.

THE BOARD OF PUBLIC EDUCATION FOR THE

CITY OF SAVANNAH AND THE COUNTY OF CHATHAM,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

RESPONDENT?’S BRIEF IN OPPOSITION

a —

maa aii

LEAMON R. HOLLIDAY

Counsel of Record

Roy E. PAUL

D. Brian DENNISON

BOUHAN, WILLIAMS & LEvy

Attorneys for Respondent

447 Bull Street

Savannah, Georgia 31401

(912) 236-2491

158949 @) Counsel Press LLC

(800) 274-3321 + (800) 359-6859

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i

QUESTIONS PRESENTED

Whether Petitioner’s Fourth Amendment Rights were

violated by a drug-dog sniff of automobiles parked on

school property?

Whether Petitioner's Fourth Amendment Rights were

violated by a warrantless search of her parked automobile

after a drug-dog “alerted” on her automobile.

Whether the discharge of Petitioner for insubordination

for failing to, submit to a drug test properly requested

under the school board’s Drug-Free Workplace policy

violated Petittoner’s Fourth Amendment Rights.

Whether Respondent’s “Drug-Free Workplace” Policy,

which is limited to reasonablé-suspicion testing in

accordance with the mandate supplied by the decisions

in Skinner v. Railway Labor Executives’ Assn., 489 U.S.

602, 109 S. Ct. 1402 (1989), and Treasury Employees v.

Von Raab, 489 U.S. 656, 109 S. Ct. 1384 (1989), as well

as Chandler v. Miller, 520 U.S. 305, 117 S. Ct. 1295

(1997) is, nevertheless, somehow constitutionally

defective.

ul

TABLE OF CONTENTS

Questions Pressmted ...... <6csactke eee

Tabbe of CogemiBR os okcséecdueke eee

A.

B.

The Course Of Proceedings .............

Statement O46 Pagie ..ssaccniic ee

Reasons for Denying the Writ .................

I.

Il.

Certiorari Is Not Appropriate In This Case,

Since Petitioner’s Rights Were Not Violated

By A Drug-Dog Sniff Of Automobiles Parked

On School Property And The Alert By The

Trained Drug-Dog To Petitioner’s Automobile

Resulted In Not Only Individualized

“Reasonable Suspension”, But Also Probable

Cause, For The Request That Petitioner Take

A Dewe Tem. .oskcencaaueeeeee ee

Certiorari Is Not Appropriate Where

Respondent’s Fourth Amendment Rights

Were Not Violated By A Warrantless Search

Of Her Automobile After A Drug-Dog

Alerted On Her Automobile And Issues Of

Admissibility Of Evidence Were Not Argued

Below. Maryland v. Dyson, 527 U.S. 465,

LID S. Ce. SOUS CHOU. 6 vn ccuicdsnaeaees

Wl

Contents

Page

A. The warrantless search of Petitioner’s

automobile was lawful. ............. 9

B. The admissibility of the evidence of

marijuana found in the vehicle was

WIRCTMTIOUINOE. . wn ccc cece neces 11

Ill. Certiorari Is Not Appropriate Since No

Federal Right Of Petitioner Was Violated By

The Board’s Drug Testing Policy Or The

Board’s Request For Her To Submit To A

Drug Test Under The Circumstances.

Moreover Petitioner’s Termination For

Violation Of The Board’s Policy Was Lawful

ET TNE EA. via ca cae ces nsieds 12

IV. Certiorari Is Inappropriate Because It Is C lear

That Respondent’s “Drug-Free Workplace”

Policy Was Consistent With The Guidelines

Set Forth By This Court. ............-.-. 14

SE Pa ee er ee ee eee 17

iv

TABLE OF CITED AUTHORITIES

B.C. v. Plumas Unified School Dist., 192 F.3d 1260

PRGA, SOOO Chk eee ea

Broderick v. Oklahoma, 413 U.S. 601, 93S. Ct. 2908

CRO OE We Crees Rte eae ee as

Cady v. Dombrowski, 413 U.S. 433, 93S. Ct. 2523

dos POPE dere Sear Sree Te OE a ee EER Pa

California v. Carney, 471 U.S. 386, 105 S. Ct. 2066

i: PR ry ee Ce enee cree rats ere meee iN

Cardwell yv. Lewis, 417 U.S. 583, 94 S. Ct. 2464

> Pas cae eS Oe er ee eo

Carroll v. United States, 267 U.S. 132, 45 S. Ct.

GeO & os bs kA aes act ea ee

Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975

PRU i hea ano CR EEK oO tee

Chandler v. Miller, 520 U.S. 305, 117 S. Ct. 1295

SRE has Feo ek i aes bk doe a ee

City of Indianapolis, et al. v. Edmond, 183 F.3d 659

(7th Cir. 1999), cert. granted, No. 99-1030 (2000)

2 O28 6:9 S°6 & Ak 2 AO OS OD BOR SD OA SS SS SS ee eee ee ES

Cooper v. California, 386 U.S. 58, 87 S. Ct. 788

(1967)

Se 8 2 6.4 8 2 229 S48 22 ORS OS SS BW OOSR OES OSS SS SoD

Page

10

10

10

10

10

a ee ee ee ee

10

Cited Authorities

Page

Emplovees’ Retirement Sys, of Ga, v. Almgren,

235 Ga. 368, 219 S.E.2d 749 (1975) ....°..... 13

Florida vy. J.L., Case No. 98-1993, 2000 U.S. LEXIS

ERS TE Be ND 6 ok hiv ee ea hk a)

Horton v. Goose Creek Ind. Schl. Dist., 690 F.2d

470 (Sth Cir. 1982), cert. denied, 463 U.S. 1207,

SR Mk. SD ov nda Peek ee eee ess 7

Logan v. Warren County Board of Education,

549 F. Supp. 145 (S.D. Ga. 1982) ..........5. 15

Maryland y. Dyson, 527 U.S. 465, 119 S. Ct. 2013

COE erie eee eee 9,10, 17

Merrett v. Moore, 58 F.3d 1547 (11th Cir. 1995),

cert. denied, 519 U.S. 816, 117 S. Ct. 58 (1996) ;

Pe Pee ee ee ree et heap ere Or a? 7

Michigan v. Thomas, 458 U.S. 259, 102 S. Ct. 3079

CRONE ks 5 Ne a ea eee ee 10

Pennsylvania v. Cabron, 518 U.S. 938, 116 S. Ct.

kt reer ee re eee 10

Skinner v. Railway Labor Executives’ Assn.,

489 U.S. 602, 109 S. Ct. 1402 (1989) ....... i, 15, 16

Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577

4 POP ee Pn ee ee re roe iy 6

vi

Cited Authorities

' Page

South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct.

S098 CA9TE) i connacsat <eedeeeen eee 10

Treasury Employees v. Von Raab, 489 U.S. 656,

IGS S. Ce. LIBS CIR v.é vets vccveceues i, 85587

United States v. Chavira, 9 F.3d 888 (10th Cir. 1993)

WOO CEVeTEPT ECT er eT Tr rr ree err 9

United States v. Hernandez, 976 F.2d 929 (Sth Cir.

oo: perro re << pldeu ska bee eee 9)

United States v. Holloman, 113 F.3d 192 (11th Cir.

GOST). is incceesuctasneleere epee rere 7

United States v. Jacobsen, 466 U.S. 109, 104 S. Ct.

1652 (SFOS) 6 kc ic nedu cheesnen eee 5,6

United States v. Jeffus, 22 F.3d 554 (4th Cir. 1994)

ches Comen as 05,660 aa cee ee

United States v. Johns, 469 U.S. 478, 105 S. Ct. 881

i eras 805 peau eae dae ee 10

United States v. Libero, 660 F. Supp. 889 (1987). 8

United States v. Ludwig, 10 F.3d 1523 (10th Cir.

1993), aff'd, 74 F.3d 1250 (10th Cir. 1995) ...7,9, 17

United States v. Morales-Zamora, 914 F.2d 200

(100 Ce. BDSG ooo s Ges eedcad eee 6,7

vil

Cited Authorities

Page

United States v. Place, 462 U.S. 696, 103 S. Ct. 2637

COO cv hack eae eee ene eee 4.5. 6, 17

United States v. Rodriguez-Morales, 929 F.2d 780

(Ist Cir. 1991), cert. denied, 502 U.S. 1030,

ave Bem Ft, . , Sa per errr 7

United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157

3 Sere er nrre ry errr rr rt 10

United States v. Seals, 987 F.2d 1102 (Sth Cir. 1993), -

cert. denied, 510 U.S. 853, 114S. Ct. 155 (1993)

pene LA eee ieee se ee al anaea oe 7

United States v. Stone, 866 F.2d 359 (10th Cir. 1989)

EO Fe EEE PO Pe eee tee NT 9,17

United States v. Thomas, 757 F.2d 1359 (2d Cir.

SE ads cbs SERRA e eens varie cue &

Vernonia School Dist. 47J v. Acton, 515 U.S. 646,

55S 3. Ch Be Cree nk vena kcavekeue ates 15

Statutes:

eae De Per rere eT ere rere ee 14

ake eS oe ee rer Prey rrr rr yr 14

Vill

Cited Authorities

Page

United States Constitution:

Fourth Amendment ................ i, 4, 6, 8, 9, 16, 17

Rule:

Or a eae eee eee 3

Supreme Court Rule 10............. eT ee 17

Other Authority:

Edward J. Cone, /n Vivo Adulteration: Excess Fluid

Ingestion Causes False Negative Marijuana and

Cocaine Urine Test Results, J. Analytical

Toxicology, Vol. 22, No. 6, Oct. 1998 ..7 7... 3

STATEMENT OF THE CASE

A. The Course Of Proceedings

Respondent agrees with the summary of the prior

proceeding set forth by Petitioner.

B. Statement Of Facts

The material facts necessary for an adjudication of this

matter are undisputed. These facts are as follows:

Petitioner was a teacher at Windsor Forest High School.

[R2-13-1]. Under the contract of employment, applicable to

all teachers in the school district, Petitioner agreed to abide

by the policies of the Board and the procedures developed

by the administration. [R2-13-6-8 (Tab A)]. Petitioner was

aware of the drug policy at issue in this case when she signed

her contract and when asked to take the test. [R2-13-26

(Tab C-Transcript p. 370)}.

On April 4, 1996, Chatham County law enforcement

personnel and Board campus police conducted a sweep of

cars parked in the parking lots of Windsor Forest High School

utilizing trained drug-dogs. [R2-13-2]. Similar sweeps had

occurred that school year and in previous years. [R2-13-26

(Tab C-Transcript pp. 36, 348-90].

During the sweep, the drug-dog being handled by a

Chatham County Deputy Sheriff alerted at a vehicle owned

by Petitioner. [R2-13-2]. Therefore, the drug-dog entered the

car and alerted on the ashtray. [R2-13-2, 26 (Tab C-Hearing

Ex. BOE-6)]. A search of the ashtray found a partially

smoked, hand-rolled roach that field-tested positive for

2

marijuana. [R2-13-2]. Petitioner thereafter was asked to take

a urinalysis drug test within the next two hours [R2-13-2],

as set forth in the Board’s drug policy. [R2-13-9 (Tab B)].

Petitioner refused to take the drug test as requested. [R2-13-2,

26 (Tab C-Transcript p. 402)].

The Superintendent suspended Petitioner and

recommended her termination on the grounds of

insubordination and for “other good and sufficient cause.”

[R2-13-2, 26 (Tab C-Hearing Ex. BOE-1)]. On April 30,

1996, following a full due process hearing, the Board upheld

the recommendation that Petitioner’s employment with the

school system be terminated. [R2-13-2]. On November 14,

1996 the State Board of Education affirmed the Board’s

decision to terminate Petitioner. [R2-13-3]. In that decision,

the State Board found:

Petitioner knew what the principal was asking

and consciously, with knowledge of the

consequences, refused to obey a lawful request.

The refusal to obey a lawful and reasonabie

request constitutes insubordination.

[R2-13-26 (Tab C-pp. 8, 11)].

Petitioner asserts additional alleged facts that are simply

not material here. Moreover, Petitioner’s contention that the

facts set forth by Petitioner in her Petition “are those facts

uncontroverted by the parties below and accepted as not at

issue by the District Court .. .” is expressly controverted.

The facts upon which the District Court based its

decision are reflected in the District Court’s decision

(Appendix “D” to Petition). The alleged facts presented by

3

Petitioner in support of her position in the trial court below

were set forth in Plaintiff's Statement of Facts Pursuant to

Local Rule 56.1 (R1-18). The specific facts that were

uncontroverted by the Board are reflected in Defendant’s

Response to Plaintiff's Statement of Facts Pursuant to Local

Rule 56.1 (R1-22).

Petitioner has chosen to focus on certain extraneous

alleged facts intended to bolster the emotional appeal of her

Petition. For example, petitioner cites the dissent in the Court

of Appeals to suggest that the delay in taking any drug test

until the next day was of no consequence. (Petition p. 13)!

The test report ultimately obtained by Petitioner itself stated

that it should not be used for legal or employment purposes.

(Ex. D-3 T-363). Evidence that marijuana was found in her

vehicle was admitted without exception at the personnel

hearing prior to her termination, [R2-13-26 (Tab C-Transcript

p. 178)], and Petitioner did not “challenge on any sort of

‘fruit of the poisonous tree’ analysis, the initial drug sweep

by County law enforcement officers.” (Appendix to Petition

at D1S).

1. A false negative can be obtained by drinking large quantities

of fluids prior to testing. A prompt test is important. See Edward J.

Cone, Jn Vivo Adulteration: Excess Fluid Ingestion Causes False

Negative Marijuana and Cocaine Urine Test Results, J. Analytical

Toxicology, Vol. 22, No. 6, Oct. 1998, pp. 460-473.

4

REASONS FOR DENYING THE WRIT

I.

CERTIORARI IS NOT APPROPRIATE IN THIS CASE,

SINCE PETITIONER’S RIGHTS WERE NOT

VIOLATED BY A DRUG-DOG SNIFF OF

AUTOMOBILES PARKED ON SCHOOL PROPERTY

AND THE ALERT BY THE TRAINED DRUG-DOG TO

PETITIONER’S AUTOMOBILE RESULTED IN

NOT ONLY INDIVIDUALIZED “REASONABLE

SUSPENSION”, BUT ALSO PROBABLE CAUSE,

FOR THE REQUEST THAT PETITIONER

TAKE A DRUG TEST.

This is not a case involving a Jerry stop or a sniffing of

an individual and there is no split in the circuits or uncertainty

based on this court’s precedent as to the propriety of the

automobile sniff under the facts of this case.

Petitioner contends that the Board’s use of a trained drug-

dog to sniff cars parked in a school parking lot for drugs

without individualized suspicion was a violation of

Petitioner’s Fourth Amendment rights. The U.S. Supreme

Court, in United States v. Place, 462 U.S. 696, 103 S. Ct.

2637 (1983), addressing the issue of whether a dog sniff of

luggage constituted a “search” within the meaning of the

Fourth Amendment, stated:

... the canine sniff is sui generis. We are

aware of no other investigative procedure that is

so limited both in the manner in which the

information is obtained and in the content of the

information revealed by the procedure. Therefore,

5

we conclude that the particular course of

investigation that the agents intended to pursue

here — exposure of respondent’s luggage, which

was located in a public place, to a trained canine

— did not constitute a “search” within the

meaning of the Fourth Amendment.

Id., 462 U.S. at 707.

Following Place, the Supreme Court, in United States

v. Jacobsen, 466 U.S. 109, 104S. Ct. 1652 (1984), held that

a police investigatory tool is not a “search” if it merely

reveals the presence of absence of contraband because the

privacy interest in possessing contraband is not one that

society recognizes as reasonable. Justice Stevens writing for

the Court observed:

We must first determine whether [a cocaine

field test] can be considered a “search” subject to

the Fourth Amendment — did it infringe an

expectation of privacy that society is prepared to

consider reasonable?

The concept of an interest in privacy that

society is prepared to recognize as reasonable is,

by its very nature, critically different from the

mere expectation, however well justified, that

certain facts will not come to the attention of the

authorities ...

A chemical test that merely discloses whether

or not a particular substance is cocaine does not

compromise any legitimate interest in privacy . . .

[E]ven if the [test] results are negative — merely

6

disclosing that the substance is other than cocaine

such a result reveals nothing of special interest.

Congress has decided —- and there is no question

about its power to do so —- to treat the interest in

“privately” possessing cocaine as illegitimate;

thus governmental conduct that can reveal

whether a substance is cocaine, and no other

arguably “private” fact, compromises no

legitimate privacy interest.

This conclusion is dictated by United States

v. Place, in which the Court held that subjecting

luggage to a “sniff test” by a trained narcotics

detection dog was not a “search” within the

meaning of the Fourth Amendment .. .

Here, as in Place, the likelihood that official

conduct of the kind disclosed by the record will

actually compromise any legitimate interest in

privacy seems much too remote to characterize

the testing as a search subject to the Fourth

Amendment.

Id., 466 U.S. at 122-124.

The Place and Jacobsen holdings make clear that action

taken only to reveal the presence or absence of contraband,

such as a drug-dog sniff, is not an intrusion of any legitimate

privacy interest, and therefore not a “search” under the Fourth

Amendment. See United States v. Morales-Zamora, 914 F.2d

200 (10th Cir. 1990); see also Smith v. Maryland, 442 U.S.

735, 740, 99 S. Ct. 2577, 2580 (1979).

7

Courts that have addressed the issue, including the

Eleventh Circuit, and the District Court below, have correctly

held that a drug-dog’s sniffing of a car is not a search

contemplated by the Fourth Amendment. United States v.

Holloman, 113 F.3d 192 (11th Cir. 1997); Merrett v. Moore,

58 F.3d 1547, 1553 (11th Cir. 1995), cert. denied, 519 U.S.

816, 117 S. Ct. 58 (1996) (stating that: “... the external

sniffing of plaintiff's vehicles was not a search within the

meaning of the Fourth Amendment”); Horton v. Goose Creek

Ind. Schl. Dist., 690 F.2d 470, 477 (Sth Cir. 1982), cert.

denied, 463 U.S. 1207, 103 S. Ct. 3536 (1983) (holding that

the sniffs of lockers and cars on school property by trained

dogs did not constitute a search); United States v. Seals,

987 F.2d 1102, 1106 (Sth Cir. 1993), cert. denied, 510 U.S.

853, 1148S. Ct. 155 (1993) (holding that the sniff of a vehicle

exterior was not a search); United States v. Morales-Zamora,

914 F.2d at 205 (10th Cir. 1990) (same); United States v.

Rodriguez-Morales, 929 F.2d 780, 788 (1st Cir. 1991), cert.

denied, 502 U.S. 1030, 112 S. Ct. 868 (1992) (same); United

States v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994) (same);

United States v. Ludwig, 10 F.3d 1523, 1527 (10th Cir. 1993),

aff'd, 74 F.3d 1250 (10th Cir. 1995) (same).

Contrary to the Petitioner’s argument, a dog-sniff, such

as the one in this case, is not subject to significantly mixed

precedent. First, this is not a case involving the sniffing of

individuals. The Petitioner does not contend that her person

was “sniffed.” Petitioner’s interjection of a student’s

observation describing the general search procedure does not

transform this fact pattern into a bodily search. The holding

in B.C. v. Plumas Unified School Dist., 192 F.3d 1260

(9th Cir. 1999) is not applicable.

8

Second, this is not a Terry stop case. There is no seizure

or detainment issue clouding the validity of the dog-sniff.

The Petitioner’s vehicle was parked in the school parking

lot. The decision to perform a dog-sniff in this case was not

used as a pretext for initially detaining the Petitioner and

her vehicle. Therefore the issues discussed in City of

Indianapolis, et al. v. Edmond, 183 F.3d 659 (7th Cir. 1999),

cert. granted, No. 99-1030 (2000) are not applicable to this

fact pattern.

Third, this case involves the dog-sniff of an automobile

at a school, not the sniff of an apartment, hotel room or railcar

roomette. Cases cited by Petitioner purport to demonstrate a

struggle amongst the Circuit Courts involve the dog-sniffing

of permanent and temporary residences. United States v.

Thomas, 757 F.2d 1359 (2d Cir. 1985) (case involving the

dog-sniffing of the outside of an apartment); United States

v. Libero, 660 F. Supp. 889 (1987) (case where aggressive

drug-dog burst into a train passenger’s roomette and hit on

drugs in passenger’s suitcase). Such cases do not demonstrate

any controversy concerning the dog-sniff of an automobile

parked in a public school parking lot. Petitioner in this matter

is not entitled to any heightened expectation of privacy

provided to the defendants in Thomas and Libero.

Conversely, based on this Court’s recent dicta in Florida v.

J.L., Case No. 98-1993, 2000 U.S. LEXIS 2345 (March 28,

2000), Petitioner’s Fourth Amendment expectation of

privacy was diminished due to her presence on school

property.

There is no split in the circuits or uncertainty as to the

applicable rules of law implicated by the material facts of

this case. Appellant’s Fourth Amendment rights were not

violated by the drug-dog sniff of her automobile.

eG SAT

9

Il.

CERTIORARI IS NOT APPROPRIATE WHERE

RESPONDENT’S FOURTH AMENDMENT RIGHTS

WERE NOT VIOLATED BY A WARRANTLESS

SEARCH OF HER AUTOMOBILE AFTER A DRUG-

DOG ALERTED ON HER AUTOMOBILE AND

ISSUES OF ADMISSIBILITY OF EVIDENCE WERE

NOT ARGUED BELOW. MARYLAND v. DYSON,

527 U.S. 465, 119 S. Ct. 2013 (1999).

A. The warrantless search of Petitioner’s automobile

was lawful.

Petitioner contends that her Fourth Amendment rights

were violated when police officers searched her car after the

trained and experienced drug-dog “alerted” on it. Once the

dog alerted police officers to Petitioner’s automobile,

probable cause existed to search her vehicle. Specifically,

the courts have held that “. . . a drug dog alert without more

[gives] probable cause for searches and seizures.” United

States v. Ludwig, 10 F.3d at 1527 (10th Cir. 1993), aff'd,

74 F.3d 1250 (10th Cir. 1995) (citing United States v. Stone,

866 F.2d 359, 364 (10th Cir. 1989)). United States v. Jeffus,

22 F.3d at 557 (4th Cir. 1994) (stating “when the dog ‘alerted

positive’ for the presence of drugs, the officer was given

probable cause for the search that followed”); United States

v. Chavira, 9 F.3d 888, 890 (10th Cir. 1993) (stating “When

the dog indicated the presence of narcotics, Robler had

probable cause to conduct a search . .. which revealed the

marijuana and cocaine”); United States v. Hernandez,

976 F.2d 929, 930 (Sth Cir. 1992) (stating “Once the dog

alerted, Arzate had probable cause to search the car. . .”).

10

Police officers were not requested to obtain a search

warrant before searching Petitioner’s automobile. The

“automobile exception” to the general rule that a search

warrant must be secured before a search is undertaken is

well-established. California v. Carney, 471 U.S. 386,

105 S. Ct. 2066 (1985); United States v. Johns, 469 U.S.

478, 105 S. Ct. 881 (1985); United States v. Ross, 456 U.S.

798, 102 S. Ct. 2157 (1982); South Dakota v. Opperman,

428 U.S. 364, 96 S. Ct. 3092 (1976); Cardwell v. Lewis,

417 U.S. 583, 94S. Ct. 2464 (1974); Cady v. Dombrowski,

413 U.S. 433, 93 S. Ct. 2523 (1973); Chambers v. Maroney,

399 U.S. 42, 90 S. Ct. 1975 (1970); Cooper v. California,

386 U.S. 58, 87 S. Ct. 788 (1967); Carroll v. United States,

267 U.S. 132, 45 S. Ct. 280 (1925).

This Court has made it clear that the “automobile

exception” has no separate exigency requirement. Maryland

v. Dyson, 527 U.S. 465, 119 S. Ct. 2013 (1999); Pennsylvania

v. Cabron, 518 U.S. 938, 116 S. Ct. 2485 (1996) (per curiam);

United States v. Ross, 456 U.S. 798, 809, 102 S. Ct. 2157

(1982). Where there is probable cause to suspect contraband

in an automobile, a warrantless search is proper. See

California v. Carney, 471 U.S. 386, 105 S. Ct. 2066 (1985);

United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157 (1982);

Michigan v. Thomas, 458 U.S. 259, 261, 102 S. Ct. 3079,

3080-81 (1982); Carroll v. United States, 267 U.S. 132, 159,

45 S. Ct. 280, 287 (1925) (warrantless search proper where

probable cause existed that automobile contained

intoxicating liquor).

Petitioner asserts that the Board’s policy to obtain

consent before searching a teacher’s vehicle raised her

expectation of privacy such that a search, without consent

or a warrant, was “unreasonable”. The search arose out of a

11 :

school safety sweep, not one triggered by the Board’s Drug

Free Work place policy. The District Court observed, “after

over twenty years of teaching [Appellant] knew or should

have known that campus drug-sweeps were to be expected”.

(R1-24-19]. In fact, Petitioner testified that she was aware

of previous drug-dog sniffs of the school parking lots.

[R2-13-26 (Tab C-Transcript pp. 348-9)].

Further, the drug-dog “alert” which gave rise to probable

cause to search Petitioner’s vehicle took place in the presence

and under the supervision of county police. [R1-24-18].

There is no “dangerous extension” of the automobile

exception in this case. A warrantless search of an automobile

in a public school parking lot it not unreasonable where there

is probable cause, and the fact that the Board’s policy called

for consent did not change the fact that officers could lawfully

search Petitioner’s car without a warrant.

B. The admissibility of the evidence of marijuana found

in the vehicle was unchallenged.

The District Court pointed out, Petitioner did not

“challenge, on any sort of ‘fruit of the poisonous tree’

analysis, the initial drug sweep by County law enforcement

officers. .. .” (Appendix to Petition at D15). In addition, the

admissibility of the marijuana found in Petitioner’s vehicle

was never disputed at the initial due process hearing.

[R2-13-26 (Tab C-Transcript p. 178)].

12

HI.

CERTIORARI IS NOT APPROPRIATE SINCE NO

FEDERAL RIGHT OF PETITIONER WAS VIOLATED

BY THE BOARD’S DRUG TESTING POLICY OR THE

BOARD’S REQUEST FOR HER TO SUBMIT TO A

DRUG TEST UNDER THE CIRCUMSTANCES.

MOREOVER PETITIONER’S TERMINATION FOR

VIOLATION OF THE BOARD’S POLICY WAS

LAWFUL UNDER STATE LAW.

The Board terminated Petitioner for her refusal to submit

to a drug test and other good and sufficient cause. [R2-13-

26 (Tab C-Transcript pp. 38, 49)]. Petitioner was aware of

the fact that her contract of employment called for and

required that she submit to such a test. [R2-13-26 (Tab C-

Transcript pp. 115-116)]. Her principal begged her to take

the test. She was given every benefit of the doubt and the

campus police officer even waited extra time for her to

appear. [R2-13-26 (Tab C-Transcript pp. 84-5)]. Further, she

was aware that in the event that she did not submit to such a

test, she could be discharged. She was so instructed.

[R2-13-26 Tab C-Exhibit BOE-3)]. Petitioner has asserted

that because the Board violated the Drug Policy by searching

her automobile without consent, that the Board should not

be allowed to discharge her for violation of the same policy.

County police officers present during the drug-dog sniff were

not bound by the policy, and therefore could search her

vehicle as authorized by law. As the District Court pointed

out, once the drug-dog alerted on Petitioner’s automobile,

the Board had the “reasonable suspicion” necessary to search

Petitioner’s vehicle under the Policy. [R2-13-19].

13

At that point the Board was free, under the

contract, to fire [Petitioner] for refusing to consent

to the search of her car. [footnote] Because she -

had no choice, the fact that the county/campus

police searched her car without her consent

constitutes at most a technical contract violation,

while the law requires on substantial compliance.

[footnote] The sniff supported the search which

turned up marijuana, thus reinforcing (with

probable cause) the reasonable suspicion that the

Board needed to demand the drug test. Upon

[Petitioner’s] refusal of that (i.e., the drug test)

search, the Board was contractually authorized to

terminate her. [cite]

[R2-13-19].

Insubordination is “just cause” for termination.

Employees’ Retirement Sys. of Ga. v. Almgren, 235 Ga. 368,

219 S.E.2d 749 (1975). See also O.C.G.A. § 47-2-2 (Michie

1986) (stating that a state employee may be discharged from

employment for insubordination). The policy itself provides

that the refusal to submit to a proper request to take a drug

test is grounds for disciplinary action.” ,[R2-13-16 (Tab B-

p. 9)]. As noted by the Board’s superintendent:

2. The Board’s Drug Free Work Place procedure provides that:

The employee immediately will be suspended, pending

investigation and discipline, if he or she does not

voluntarily and immediately accompany the designated

employee to the testing site and submit to testing within

two (2) hours of being requested to do so.

14

... There is no member of the staff, that it be a

student, teacher, an employee, that can be held

above the policies of the Board of Education. And,

as | mentioned, as a way of trying to help and

assist our employees to make sure there aren’t the

problems that occur, those policies are enacted.

To think that an employee would have the

right to determine if she or he would be in a

situation not to adhere to policy, I think would very

badly damage the policies of the Board of Education

and the opportunity to make sure that everybody

in this district is treated fairly and equitably.

[R2-13-26 (Tab C-Transcript p. 38)]. Petitioner was properly

discharged under state law because she would not submit to

the drug-testing policy adopted by her employer.

IV.

CERTIORARI IS INAPPROPRIATE BECAUSE IT IS

CLEAR THAT RESPONDENT’S “DRUG-FREE

WORKPLACE” POLICY WAS CONSISTENT WITH

THE GUIDELINES SET FORTH BY THIS COURT.

The requested drug test at issue in this case was not a

random screen. The request for Petitioner to take the test

—was justified because a trained drug-dog alerted on

Petitioner’s vehicle on school property. Additional cause

existed when marijuana was found in Petitioner’s car.

Possession of marijuana, and in particular, possession on school

property, is a crime and direct violation of Board Policy.’

3. O.C.G.A. §§ 16-13-30, 16-13-32.4; Board policy 0766

provides in part “The system prohibits the . . . presence (of drugs)

on its property or work sites.” [R1-1-14].

15

Significantly, Petitioner never took the required test and,

therefore, should lack standing to challenge the mechanics

of the testing procedure. See Broderick v. Oklahoma,

413 U.S. 601, 610, 93 S. Ct. 2908 (1973); Logan v. Warren

County Board of Education, 549 F. Supp. 145, 149

(S.D. Ga. 1982). However, even if Petitioner had standing,

her challenge is without basis.

The procedure at issue provides that a school-system

employee must take a test when “supervisor observations or

other objective circumstances reasonably support a suspicion

that an employee may have alcohol and/or drugs present in

his or her system or has otherwise violated the Board drug

and alcohol policy.” [R1-1-20]. The Board’s limitation of

its policy to reasonable-suspicion testing is in accord with

the mandate supplied by the decisions in Skinner v. Railway

Labor Executives’ Assn., 489 U.S. 602, 109 S. Ct. 1402

(1989), and Treasury Employees v. Von Raab, 489 U.S. 656,

109 S. Ct. 1384 (1989), as well as by this Court’s most recent

pronouncement in Chandler v. Miller, 520 U.S. 305, 117 S.

Ct. 1295 (1997). Significantly, the requested test at issue ©

here was based not only on reasonable suspicion, but also

on probable cause. [R1-24-17].

The present case does not involve a “special needs”

search. It involves a drug test search based on individualized

suspicion of criminal activity. Accordingly, no context-

specific inquiry was or is necessary.*

4. The Board notes, however, that if a showing of “special

need” were at issue, Vernonia School Dist. 47J v. Acton, 515 U.S.

646, 115 S. Ct. 2386 (1995) suggests that this additional standard

would be met. Teachers become role models. Placing in the

classroom a teacher who encourages drug use or engages in illegal

activity will adversely impact children and their education.

16

The testing procedure described by the Board’s policy

is reasonably limited and was sufficiently private to further

ameliorate any impact upon Fourth Amendment rights.

[R1-1-23, 24].

This Court has noted that such procedural safeguards

are important in alleviating the harsh effects of an alleged

intrusion into privacy. Skinner, 489 U.S. at 626-627. The

Court noted that the testing procedures in Skinner “...

endeavor to reduce the intrusiveness of the collection

process.” Jd. Among these protections was the fact that the

policy did not “. . . require that samples be furnished under

the direct observation of a monitor . . .” Jd. The Court also

noted that the samples were “... collected in a medical

environment, by personnel unrelated to the railroad employer

...” Id. Further, the procedure was “. . . not unlike similar

procedures encountered in the context ofa regular physical

examination.” /d.°

The Board’s policy incorporates each of the safeguards

articulated in Skinner. The Board, after all, does not collect

the specimen, monitor the collection of the specimen, test

the specimen, or require an employee to submit to a test that

is outside the realm of an ordinary urine test. Thus, the testing

procedures employed by the Board further support the

Board’s policy.

5. The Skinner court even noted that “... the intrusion

occasioned by a blood test is not significant, since such tests are

commonplace in these days of periodic physical examinations .. .”

(emphasis added). Skinner, 489 U.S. at 625.

a nN EE aren nn Meme

17

CONCLUSION

Under Rule 10 of this Court, “review on a writ of

certiorari is not a matter of right but of judicial discretion. A

petition for a writ of certiorari will be granted only for

compelling reasons.”

There is no basis for review in this case. It is well settled

that a dog-sniff of an automobile is not a search. United States

v. Place, 462 U.S. 696, 103 S. Ct. 2637 (1983). Widely held

precedent, unchallenged in this context, provides that a drug

dog alert establishes probable cause for searches and seizures.

United States v. Ludwig, 10 F.3d at 1527 (10th Cir. 1993),

aff'd, 74 F.3d 1250 (10th Cir. 1995) (citing United States v.

Stone, 866 F.2d 359, 364 (10th Cir. 1989)). Additional

exigent circumstances are not required to perform a

warrantless search of a vehicle. Maryland v. Dyson, 527 U.S.

465, 1198S. Ct. 2013 (1999). Petitioner’s Fourth Amendment

arguments were not preserved by objection to the alleged

improperly discovered evidence. Finally, the termination of

the Petitioner for refusing to comply the Board’s reasonable

drug testing policy was lawful. Treasury Employees v. Von

Raab, 489 U.S. 656, 109 S. Ct. 1384 (1989).

The facts of this case do not present a need to resolve

any conflict in the law and the decision conforms with the

widely held precedents already promulgated by this Court.

For this reason respondent respectfully requests that a writ

of certiorari be denied.

18

Respectfully submitted,

LEAMON R. HOLLIDAY

Counsel of Record

Roy E. PAu

D. BRIAN DENNISON

BOouHAN, WILLIAMS & LEvy

Attorneys for Respondent

447 Bull Street

Savannah, Georgia 31401

(912) 236-2491