- by Jack Ryan
Legal & Liability Risk Management Institute

One method of fighting substance abuse in schools has been the random inspection of lockers.  The varying methods by which lockers have been searched have been dependent on school department policy or the planning of individual administrators.  A common method of searching lockers has been the use of police officers with drug-detecting dogs.  It should be noted that the United Supreme Court has determined that a dog’s sniff from a common area (an area where no one has an expectation of privacy) is not a search for Fourth Amendment purposes.ⁱ  As such a drug-sniffing dog that sniffs closed lockers situated in a public corridor would not be considered a search for Fourth Amendment purposes.  Once the dog alerts on the locker, school officials and/or police would have probable cause to believe the locker contained drugs.

In Commonwealth of Pennsylvania v. Cass,ⁱⁱ the Pennsylvania Supreme Court was faced with an arrest for drug possession following a canine sniff of 2000 lockers at the Harborcreek High School in 1994.  The school principal called for the search due to increasing concerns about drug use in the school.  The principal, in testimony at a hearing challenging the admissibility of narcotics evidence, offered several reasons for his heightened concern:

Information from unnamed students, observations from teachers of suspicious activity by the students, such as passing small packages between themselves in the hallway; increased use of student assistance program for counseling students with drug problems; calls from concerned parents; observation of a growing number of students carrying beepers; students in possession of large amounts of money; and increased use of pay phones by students.  The principal also testified that he had observed students exhibiting physical signs of drug use such as dilated pupils while in the school nurse’s office.

The search in this case was not based upon individualized suspicion regarding any particular student, but was instead a general search of all of the lockers in the school by means of a canine’s sniff.  Generally, a canine sniff does not constitute a search, however the Pennsylvania Supreme Court, in a prior case, determined that a canine sniff is a search under the Pennsylvania Constitution. The case, Commonwealth v. Johnston,ⁱⁱⁱ went on to conclude “that a warrant would not be required prior to the sniff search when the canine is legitimately in the place where the sniff is conducted and articulable reasonable grounds exist for believing that drugs may be present in the place subjected to the sniff search.”  The court in Cass found that the canine was authorized to be in the school since the school district asked to use the dog.  Further, the court concluded that the principal had articulated reasonable grounds to believe that drugs would be found on school property.

In Cass, the principal announced to students that there would be a safety check and that students should remain in their classrooms until the check was complete.  Two police officers with a trained drug-detection dog were called in to assist in a search of the lockers.  The dog methodically sniffed 2000 lockers.  Eighteen lockers were searched as a result of the dog’s alert.  School officials found contraband in only one locker.  The one locker belonged to a student, Vincent Cass.  Cass was given a ten-day suspension and counseling for the school violation and was referred to court for criminal possession of the narcotics.  Cass sought to have the evidence from the locker suppressed, claiming violations of the United States and Pennsylvania Constitutions.  The trial court suppressed the evidence, holding that school officials should not have undertaken this “general” search for which there was no individualized suspicion to suspect that Cass’ locker contained narcotics.

In overturning the decision of the trial court, the Pennsylvania Supreme Court adopted the United States Supreme Court’s decision in New Jersey v. T.L.O.   The court found a compelling state interest in reducing substance abuse among students in school.  When weighed against the minimal intrusion in this case, the court found the search to be reasonable.  The court noted that students could only use combination locks on the school-owned lockers with the school’s permission and after the school was apprised of the combination, thus limiting a student’s expectation of privacy in their locker.  In conclusion, the Supreme Court of Pennsylvania adopted the position of T.L.O. as consistent with the mandated of the Pennsylvania Constitution.

In a case out of Wisconsin, the Wisconsin Supreme Court extended the parameters of a random locker search to items in the locker.  In a case, In the Interest of Isiah B.,^iv a security officer conducted a random search of lockers following a rash of gun related incidents at the Madison High School in Milwaukee.  School administrators had investigated five to six gun incidents and verified the presence of guns in two of the cases. The principal ordered the search of lockers.

A school security officer searched 75-100 lockers before reaching Isiah B.’s locker.  The security moved items around in the lockers in order to facilitate these searches.  As he moved Isiah’s coat, it seemed heavier than normal.  He then patted the coat pocket and felt what he believed to be a gun.  The guard notified the principal, but before the principal arrived, the guard pulled open the pocket and observed the grip of a gun.

After being confronted with the evidence, Isiah B. admitted that he had cocaine in the same pocket.  The Wisconsin Court, going further than many other courts concluded that this search was valid because students have no reasonable expectation of privacy in their lockers.  Most courts refuse to recognize a significant expectation of privacy in a school locker, reasoning that the lockers belong to the school, thus students have only a limited expectation of privacy in them.

School officials who are considering a random search of lockers would be well-advised to articulate why they have determined that these searches are necessary for maintaining order and discipline in their schools while at the same time promoting the security, health and welfare of their students.  In many of these cases of random searches, the courts have emphasized the testimony of school administrators who have indicated things such as drug problems or issues of violence that preceded the decision to conduct these searches.

It must be recognized that when school officials want to search a single individual’s locker because they suspect that particular student of a violation of the law or school rules, they must meet the individualized suspicion standard set out in T.L.O.  Specifically a school administrator would have to articulate reasonable suspicion to believe that evidence of a school rule or a violation of law will be found in the locker.  Secondly, the search of the locker must be reasonable in relation to the nature of the offense suspected.

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