The Connecticut Superior Court in Burbank v. Canton Bd. Of Education,  2009 WL 3366272 (Conn. Super. 9/14/09)  ruled against parents and students who sought to prohibit the Canton Public School District from continuing its practice of using local police to conduct suspicionless sweeps of parking lots and unattended lockers at its middle and high schools using dogs trained to identify illegal drugs and other contraband. The parents and the students sought a preliminary injunction challenging the practice as unconstitutional. The Burbank court rejected all of the parents’ and students’ challenges and concluded that the dog sniffing sweeps are allowable to maintain the safety of students and staff and does not amount to a fourth amendment search or seizure and that the policy/practice at issue does not intrude in any meaningful way in the core parent and student relationship.

The sweep in question took place this past June and lasted about one hour and fifty minutes in duration and during some of this time, the students would normally have been in their first period class. While students were required to “stay put” in their classroom while the sweep was completed, the building itself was not in lock down and individuals having permission could come and go. After the sweep, the school conducted a student assembly explaining what had occurred and why and additionally, parents were notified by letter regarding the sweep.

Citing federal precedent, the Burbank court ruled that the use of dogs to sniff for contraband inside unattended lockers and cars was not a search for purpose of the Fourth Amendment. The Court applied the “public smell “doctrine and reasoned that students do not have a reasonable expectation of privacy in the smells emanating from their lockers and cars. The Burbank court found it significant that no individuals were sniffed and that the Canton Board of Education policy at question provided that no individuals be subjected to a search by dogs. The Burbank court did not find the detention in the classroom a seizure for the purposes of the Fourth Amendment reasoning that school officials maintain the discretion and authority for scheduling all student activities each school day and the one hour fifty minute detention did not exceed that discretion and authority. Lastly, while recognizing parental rights in areas such as custody and visitation as well as the right to control where their children are educated, the Court concluded that the sweep “does not strike at the heart of the parent-child relationship or implicate a fundamental interest in family integrity.”

 

While Canton’s policy and practice passed constitutional muster, other Connecticut school districts that opt to adopt a similar policy need to proceed with caution and need to consider factors such as the following: the breadth of the search, the level of students’ expectations of privacy , the intrusiveness of the proposed search, the  type of advance notice to be provided to parents or students, establishing protocols for carrying out the sweeps and any eventual searches in response to a dog alert, defining the  potential disciplinary consequences for identified violations of policy, as well as establishing protocols for how the searches will be documented and parents notified.

 

The Burbank case has clarified that Connecticut school boards may adopt policy that provides for sweeps by local police using sniffer dogs of unattended lockers and cars parked in school parking lots, but should not be interpreted to extend that practice to using dogs to search students. STAY TUNED  for a final pronouncement on the legality of these sweeps since an appeal of the case was filed and is pending.