The Police Power of Texas and the 4th Amendment

The Court of Appeals of Texas on March 5 came down with a unique turn on the issue of 4th Amendment rights in public schools. The case In The Matter of D.H., Appellant, a minor was attending a public school in Texas in October of 2006. Officers from the Austin Police Department arrived at her High School, to perform a K-9 search of the school, as directed by the school principal.

The officers went from classroom to classroom, informing teachers to evacuate the classrooms, ordering students to leave their belongings behind. After the rooms were evacuated, the police and dogs would enter and sniff all of the belongings. The appellant, D.H. had a “small bag of marihuana” in her backpack.

On appeal, D.H argued that the seizure occurred when she was required to leave it behind, and because neither the school nor the police had reason to believe she was engaged in criminal activity, the lacked “reasonable suspicion to seize her bag”

In their Opinion, the Court reasoned that:

“The students themselves were not sniffed and they were not in the room while the dog sniffed their belongings. Only Perez, the dog, and the two officers were present when the dog alerted on D.H.'s backpack. Thus, D.H. was not exposed to embarrassment or scrutiny by her classmates while the inspection was taking place. She was not required to open her bag in front of anyone until after the dog alerted, and then the contents of the bag were only seen by Perez and the police officers. Given the method employed in conducting the canine inspection and the minimally intrusive nature of the inspection, we hold that the invasion of D.H.'s privacy was not significant.” In re D.H. 2010 WL 744117, 3 (Tex.App.-Austin) (Tex.App.-Austin,2010)

In fairness, the Assistant Principal testified that the school knew of a drug problem, including, but not limited to, the trafficking of marihuana. At the end of the day, the Court held that “D.H. brought her backpack into a public school, where she was required to temporarily surrender its possession and leave it in the classroom to be sniffed by a dog. Given D.H.'s reduced expectation of privacy, the low level of intrusion involved in the dog's inspection of the airspace surrounding her backpack, the limited information gathered, Reagan High's interest in combating drug abuse, and its tutelary and custodial responsibilities for its students, we hold that the detention of her backpack was reasonable and thus constitutionally permissible.” Id., at 4

What I find most unique about this case is the disregard for the Tinker principle, i.e. “students in public schools do not ‘shed their constitutional rights…at the school house gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969) Notwithstanding that this case is a product of the Lone Star state, it demonstrates the vast police power which states are now afforded under a strict reading of the 4th Amendment.