LOCKYER LIMITS SCHOOL DRUG SEARCHES

He Says It's Illegal To Sniff Out Backpack If Student Isn't There

Sacramento -- In an opinion that could affect hundreds of California school
districts, the state Attorney General has ruled that drug searches of
student backpacks outside of the student's presence violate the U.S.
Constitution.

The seven-page opinion has the effect of law unless changed by legislation
or a court case and means school districts that use drug-sniffing dogs for
random tests may have to change their policies.

"It would be unreasonable and thus unconstitutional under the federal
Constitution and the California Constitution to separate the students from
their personal belongings in order to have the belongings sniffed by drug
detection dogs," Attorney General Bill Lockyer wrote in the opinion.

At least 300 of the state's more than 1,000 school districts use dogs to
sniff out guns or drugs.

Some districts, like Fairfield-Suisun Unifed, employ in-classroom drug
searches similar to the one Lockyer found illegal.

Others, like Castro Valley Unified, use dogs only to sniff student lockers
and cars and would likely not be affected by the ruling.

The opinion was sought more than one year ago by the Oxnard Unified High
School District.

The district wanted to know if the drug policy it was considering was legal.

It wanted students to leave their personal belongings -- backpacks, purses
and jackets -- in their classrooms and go somewhere else while dogs sniffed
them for drugs.

If a dog found drugs, the student's belongings would be searched by school
administrators without the pupil's permission.

Long before Lockyer's ruling, the district opted for a less intrusive
search policy -- using dogs like Castro Valley does only to sniff lockers
and cars.

"When we initiated canine detection in 1999 we decided because of our
attorneys and their concerns we would take a prudent perspective on the
searches," said Ralph Gonzalez, director of instructional support services
for the district.

Lockyer's opinion found that separating students from their belongings is
an illegal "seizure" under the Fourth Amendment, which prohibits
unreasonable searches or seizures.

Lockyer said that although school officials are not required to get a
warrant or have probable cause to search a pupil's belongings, their search
needs to based on suspicion of student wrongdoing.

That was not the case here, making the searches illegal.

"In this situation presented, the described procedure would be conducted on
a random basis," Lockyer wrote.

"Thus, no suspicion, individualized or otherwise, much less reasonable and
articulable and premised on objective facts, would be present. Moreover,
the property would be seized from the immediate custody and control of the
students, who then would be physically separated from their personal
possessions."

Many of the California schools that use drug-sniffing dogs contract with a
Texas company called Interquest Detection Canines which conducts searches
at some 1,000 schools in 14 states.

Michael Ferdinand, a vice-president of the company, said the searches done
by Interquest are similar to the one described in Lockyer's opinion but not
identical.

Students do leave the classroom and their belongings remain, Ferdinand said,

but no search of a student's possessions is conducted without the student's
permission.

Ferdinand estimated that between 70 and 80 percent of the approximately 300
schools Interquest contracts with conduct classroom searches.

"We have conducted classroom inspections since 1994 and have yet to have a
defined legal challenge as to whether it's a violation of Fourth Amendment
rights," Ferdinand said. "You have to weigh individual rights against the
interests of the whole."