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Opinion No. 99-1103 99-1103
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TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California

BILL LOCKYER
Attorney General

OPINION
of
BILL LOCKYER
Attorney General
ANTHONY S. DA VIGO
Deputy Attorney General
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No. 99-1103
November 17, 2000

THE HONORABLE CATHIE WRIGHT, MEMBER OF THE STATE
SENATE, has requested an opinion on the following question:
May school administrators at a public high school implement a policy
requiring on an unannounced, random, and neutral basis that (1) pupils be directed to vacate
their classrooms and leave behind their personal belongings, including backpacks, purses,
jackets, and outer garments, for sniffing by canines trained in the detection of drugs, (2) the
pupils would proceed to a location not within the immediate vicinity of the canines and
would remain away from the canines at all times, and (3) if a canines behavior indicated
the presence of drugs, the pupils personal belongings would be searched by the school
administrators without the pupils consent? 1

The warrant clause of the Fourth Amendment states that . . . no Warrants shall issue, but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
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CONCLUSION
School administrators at a public high school may not implement a policy
requiring on an unannounced, random, and neutral basis that (1) pupils be directed to vacate
their classrooms and leave behind their personal belongings, including backpacks, purses,
jackets, and outer garments, for sniffing by canines trained in the detection of drugs, (2) the
pupils would proceed to a location not within the immediate vicinity of the canines and
would remain away from the canines at all times, and (3) if a canines behavior indicated
the presence of drugs, the pupils personal belongings would be searched by the school
administrators without the pupils consent.
ANALYSIS
We are asked whether a schools random investigation of drugs contained in
pupils personal belongings, using dogs to sniff the belongings outside of the pupils
presence, followed by a search of any belongings to which the dogs reacted, would be
permissible under the Fourth Amendment of the federal Constitution and the privacy
guarantee of the California Constitution. We conclude that the proposed random detection
program would not survive constitutional scrutiny.
The Fourth Amendment to the Constitution of the United States provides:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . . The Amendment protects
people from unreasonable government intrusions into their legitimate expectations of
privacy. (United States v. Chadwick (1977) 433 U.S. 1, 7.) Ordinarily, a judicial warrant
issued on probable cause is necessary to render either a search or seizure of ones person or
possessions reasonable. (United States v. Place (1983) 462 U.S. 696, 701.)
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This right of
personal security is inherent in the concept of due process, and therefore applies as well to
state officers, including public school officials, through the Fourteenth Amendment.
(Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 652; Elkins v. United States
(1960) 364 U.S. 206, 213; 80 Ops.Cal.Atty.Gen. 354, 355 (1997).)


Section 1 of article I of the California Constitution, as amended by the 1972
privacy initiative, provides: All people are by nature free and independent and have
inalienable rights. Among these are . . . pursuing and obtaining safety, happiness, and 2

The California Constitutions privacy guarantee operates separately and in addition to the Fourth
Amendments protections against unreasonable searches and seizures. References to California authorities
appear herein as appropriate, to substantiate the state of the law in California. Citations of federal authorities
alone are not indicative of the absence of California authority on the same subject, but rather of the absence
of any known divergence between application of the Fourth Amendment and California law that would
necessitate discussion of California authorities. (See In re William G. (1985) 40 Cal.3d 550, 557, fn. 4.)
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privacy. Quoting directly from the ballot argument in favor of the 1972 initiative, the
court in White v. Davis (1975) 13 Cal.3d 757, 774-775, observed:
. . . The right of privacy is the right to be left alone. It is a
fundamental and compelling interest. It protects our homes, our families, our
thoughts, our emotions, our expressions, our personalities, our freedom of
communion, and our freedom to associate with the people we choose. . . .
. . . The right of privacy is an important American heritage and
essential to the fundamental rights guaranteed by the First, Third, Fourth, Fifth
and Ninth Amendments to the U.S. Constitution. This right should be
abridged only when there is a compelling public need. . . .
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Special Fourth Amendment standards apply to pupils in the public schools.
Although, as is frequently observed, public school students do not shed their constitutional
rights . . . at the schoolhouse gate (Tinker v. Des Moines Indep. Sch. Dist. (1969) 393 U.S.
503, 506), because of the schools custodial and educational responsibilities, public school
pupils are legitimately subject to a degree of supervision and control that could not be
exercised over free adults (Vernonia School Dist. 47J v. Acton, supra, 515 U.S. at pp. 655-
656), and public school pupils consequently enjoy a lesser expectation of privacy than
members of the population generally (id., at p. 657).
Thus, the United States Supreme Court has concluded that while public school
officials are generally subject to Fourth Amendment constraints, they are not required to
obtain a warrant or possess probable cause as a prerequisite to a search or seizure of pupils
belongings, provided that their actions are based on reasonable suspicion of proscribed
activity, and the actions taken in response thereto are reasonable in light of the needs and
interests of the school administrators and the justifiable privacy expectations of the students.
(New Jersey v. T.L.O. (1985) 469 U.S. 325, 337-343.)
Initially, we note that the procedures proposed would not involve any contact
between the drug-sniffing dogs and the pupils themselves, all of whom would be absent 99-1103
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from the area in which the dogs would be located. If the pupils were in the same location
as the dogs, additional and different considerations would require our examination. (See
B.C. v. Plumas Unified Sch. Dist. (9th Cir. 1999) 192 F.3d 1260, 1271; Horton v. Goose
Creek Ind. Sch. Dist. (5th Cir. 1982) 690 F.2d 470, 478-479; Doe v. Renfroe (7th Cir. 1981)
631 F.2d 91, 92.)
The types of personal property that students may typically bring to school were
described by the United States Supreme Court in New Jersey v. T.L.O., supra, 496 U.S. 325:
. . . Students at a minimum must bring to school not only the supplies
needed for their studies, but also keys, money, and the necessaries of personal
hygiene and grooming. In addition, students may carry on their persons or in
purses or wallets such nondisruptive yet highly personal items as photographs,
letters, and diaries. Finally, students may have perfectly legitimate reasons to
carry with them articles of property needed in connection with extracurricular
or recreational activities. (Id., at p. 339.)
Here, the students would not only be instructed to vacate their classrooms but
also to leave behind their personal belongings. Would the physical separation of the pupils
from their belongings constitute a seizure of the property under the Fourth Amendment?
In Soldal v. Cook County (1992) 506 U.S. 56, 61, the court stated: A seizure of property
. . . occurs when there is some meaningful interference with an individuals possessory
interests in that property. [Citation.] (See Horton v. California (1990) 496 U.S. 128, 133;
Arizona v. Hicks (1987) 480 U.S. 321, 324; United States v. Jacobsen (1984) 466 U.S. 109,
113, 120.) Moreover, seizures of property are subject to Fourth Amendment scrutiny even
though no search within the meaning of the Amendment has taken place. [Citations.]
(Soldal v. Cook County, supra, 506 U.S. at p. 68.)
We have no doubt that separating the students from their personal belongings
would constitute a seizure of property for purposes of the Fourth Amendment. It would
result in a meaningful interference with the students possessory interests in their
belongings. (See United States v. Place, supra, 462 U.S. at pp. 707-708 [separating
personal luggage from immediate possession of person for purpose of arranging exposure
to a narcotics detection dog constitutes a seizur