DocketNumber： No. 97-17287
Judges： Aiken, Brunetti, Pregerson
Filed Date： 9/20/1999
Status： Precedential
Modified Date： 11/4/2024
concurring in part:
I concur in parts I, II, III, IV, and VI of the majority’s opinion, and while I agree with the result reached by the majority in Part V, I write separately because the majority’s conclusion that an unreasonable search occurred in this case under the Fourth Amendment is not supported by Supreme Court or circuit court precedent.
The majority correctly states that “[a] search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed,” yet the majority fails to identify the reasonable expectation of privacy that was infringed when the plaintiff walked past the drug dog. The interaction between the students and the dog in this case did not implicate a legitimate expectation of privacy protected by the Fourth Amendment and did not, therefore, constitute a Fourth Amendment search because the dog could have only detected the presence or absence of con
The majority has also failed to discuss the most relevant Supreme Court and Ninth Circuit cases that address drug dogs and the Fourth Amendment. The Supreme Court has held that subjecting luggage in a public place to a sniff test by a trained narcotics dog is not a search under the Fourth Amendment, see United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), and that a test which merely discloses the fact that a substance is a controlled substance does not affect a legitimate privacy interest implicating the Fourth Amendment. See United States v. Jacobsen, 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). After the Supreme Court’s decisions in Place and Jacobsen, this Court concluded that a dog sniff is not a search under the Fourth Amendment if: “(1) it discloses only the presence or absence of a contraband item, and (2) its use ‘ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.’ ” United States v. Beale, 736 F.2d 1289, 1291 (9th Cir.1984) (en banc) (emphasis in original) (quoting Place, 462 U.S. at 707, 103 S.Ct. 2637). Although the majority claims that Beale supports its conclusion that a search occurred in this case, the majority neither mentions the Beale test nor attempts to demonstrate why, under the Beale test, a Fourth Amendment search occurred in this case. The majority also fails to acknowledge that, in Beale, this Court concluded that the dog sniff at issue in that case did not constitute a Fourth Amendment search.
The majority also misreads the Beale opinion when it asserts that this Court cited to the Fifth Circuit’s decision in Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 479 (5th Cir.1982), with approval and recognized that the intrusiveness of dog sniffs are greater when the dog is permitted to sniff an individual. This Court did not cite to the Horton opinion with approval. In Beale, we noted that we were “not confronted with a case in which the detection dog conducted a sniff of a person rather than an inanimate object” and cited to HoHon only as an example of a case where dogs sniffed people rather than inanimate objects. Beale 736 F.2d at 1291, 1291 n. 1. More importantly, we never stated or implicitly recognized in Beale that the intrusiveness of dog sniffs are greater when a dog sniffs an individual rather than an inanimate object such as luggage.
The majority’s heavy reliance on the Fifth Circuit’s decision in HoHon to support its conclusion that a search occurred in this case is misplaced because HoHon is distinguishable. In HoHon, the Fifth Circuit held that when a dog sniffs around each student, puts his nose on (“up against”) the students, scratches at the students, and displays other signs of excitement, a search occurs under the Fourth Amendment. See Horton, 690 F.2d at 479. The dog in this case did not sniff around each student, touch the students in any manner, or display signs of excitement. The dog was always three to four feet from the students as they exited and re-entered the classroom. The Fifth Circuit in HoHon even specifically declined to address “whether the use of dogs to sniff people in some other manner, e.g., at some distance, is a search.” Id. A full and
The majority, in footnote 8, believes that I erroneously distinguish this case from Horton based on the single fact that the dog in this case did not touch the students. This case and Horton are distinguishable, however, because, as the majority itself states, “the level of intrusiveness of an investigative technique is critical to whether the actions of government officials constitute a search,” and the investigative techniques employed in Horton were much more intrusive than the investigative techniques employed in this case. The majority continues its discussion in footnote 8 by quoting Katz v. United States as stating “the reach of the Fourth Amendment cannot turn on the presence or absence of a physical intrusion.” Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A full reading of Katz, however, reveals that the Court stated:
[Ojnce it is recognized that the Fourth Amendment protects people — and not simply “areas”— against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.
Katz, 389 U.S. at 353, 88 S.Ct. 507 (emphasis added). Thus, the language quoted by the majority addresses physical invasions of places, not physical invasions of people. Moreover, the Supreme Court has long recognized that the specific bodily invasion a person suffers is relevant to the issues of whether a Fourth Amendment search occurred or whether a Fourth Amendment search is reasonable. See Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616-18, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); California v. Trombetta, 467 U.S. 479, 481, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Accordingly, distinguishing this case from Horton based on differences in the bodily intrusions suffered by the students is not contrary to specific Supreme Court precedent or general Fourth Amendment jurisprudence.
The majority also fails to acknowledge that the one circuit court decision that is most closely related to this case concluded that a Fourth Amendment search did not occur. See Doe v. Renfrow, 631 F.2d 91 (7th Cir.1980) (per curiam) (adopting the district court’s opinion reported at 475 F.Supp. 1012). In Renfrow, a narcotics dog walked up and down the aisles of classrooms while the students remained at their desks. See Doe v. Renfrow, 475 F.Supp. 1012, 1016 (N.D.In.1979). The court concluded “that the students did not have a justifiable expectation of privacy that would preclude a school administrator from sniffing the air around the desks with the aid of a trained drug detecting canine.” Id. at 1022. The Renfrow analysis is correct and, therefore, a Fourth Amendment search did not occur in this case when the plaintiff passed in front of the drug dog at a distance of three to four feet and the dog never alerted or moved.
Finally, the majority states: “We agree with the Fifth Circuit that ‘close proximity sniffing of the person is offensive whether the sniffer be canine or human.’ ” Whether we or the public find government conduct offensive is irrelevant to Fourth Amendment analysis because Fourth Amendment analysis is not dependent upon whether government conduct is offensive. Instead, Fourth Amendment analysis depends on whether government conduct unreasonably invades a reasonable expectation of privacy. The -majority has failed to conduct proper Fourth Amend
I also write separately because, assuming that a Fourth Amendment search occurred in this case, the majority has also failed to conduct the proper balancing test to determine whether the search in this case was unreasonable under the Fourth Amendment. “Whether a particular search meets the reasonableness standard is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Veronia School Dist. v. Acton, 515 U.S. 646, 652-53, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) (emphasis added) (quotations omitted). “In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such [individualized] suspicion.” Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 1301, 137 L.Ed.2d 513 (1997) (emphasis added). The majority concludes that the searches in this case were unreasonable because the school district’s interest in deterring drug abuse would not be jeopardized by requiring individualized suspicion, basing its conclusion on the fact that the record does not disclose a “drug problem” or “crisis” at Quincy High School.
This analysis is problematic. The majority fails to explain how the school district’s important-if not compelling-interest in keeping its schools and students free from drugs is not jeopardized if, as the majority concludes, the school district must wait until a known drug problem or crisis exists before the district can conduct preemptive and protective drug searches. Under the majority’s reasoning, school districts must wait until they experience an actual drug epidemic before they can conduct preemptive searches for illegal drugs. The Fourth Amendment does not support such a rule.