October 7, 1998 98-R-1246

FROM: Sandra Norman-Eady, Senior Attorney

RE: Use of Narcotics Detection Dogs

You wanted to know (1) when police can use narcotics detection dogs to conduct searches on school grounds, (2) whether schools have to have a policy on their use, and (3) whether there are any court cases specifically on point.

Neither the statutes nor case law specifies when police may use narcotics detection dogs on school grounds. That decision is typically made by the police department shift commander or supervisor on duty at the time police officers are investigating a narcotics case and usually turns on the facts of the case (i.e., what the officers are looking for) and whether they have a search warrant.

Although the statutes do not answer your specific question, they do require schools to develop policies for dealing with students’ use, sale, or possession of controlled drugs on school property, including policies for cooperating with police. The statutes also provide information on school searches. Schools may allow law enforcement officers to search for contraband on school property available for student use when there are reasonable grounds for suspecting the search will turn up evidence of violations of the law or school rules and the search is related to its objectives and not overly intrusive.

If a school’s policy allows officers to conduct a search on school property and the officers takes a narcotic detection dog along on the investigation, Connecticut courts have decided that a sniff by the dog satisfies Article I, § 7 (search and seizure) of the Connecticut Constitution when the officers have a reasonable and articulable suspicion that the thing or place searched contains contraband.

The shift commander or supervisor of a police department on duty at the time a drug investigation is required typically determines whether a narcotics detection dog should accompany the investigating officers, according to Chief Anthony Salvatore, co-chair of the legislative section of the Police Chiefs’ Association and Cromwell Police Chief. The decision to include a dog on the investigation team hinges on the thing or place the officers have to search, Chief Salvatore reports. There are no special rules or policies on the use of such dogs when the place to be searched is a school or school grounds, Salvatore maintains.

In 1987, the General Assembly required each local and regional board of education to develop, adopt, and implement by July 1, 1991 polices and procedure for (1) dealing with students’ use, sale, or possession of controlled substances on school property and (2) coordinating with law enforcement officials (CGS § 10-221 (d)). School employees must turn over to school administrators or law enforcement officials physical evidence indicating that a student has committed a crime. Employees are not required to reveal the student’s name (CGS § 10-154a).

In response to this legislation, the Connecticut Association of Boards of Education, Inc. (CABE) developed policy recommendations for local and regional school boards. Under the recommendations school employees must report to the principal individuals suspected of distributing drugs on school property or at a school sponsored activity. After determining that distribution has occurred, the principal must call a law enforcement official who may question the student (without abridging his right to remain silent or speak to an attorney) in the principal’s presence (CABE Recommendations § 5131.6).

In 1994 the legislature enacted a law that allows local and regional boards of education and private elementary and secondary schools to let school or law enforcement officials search for contraband in student lockers or other school property available for student use if:

1. there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating the law or school rules and
2. the search is reasonably related to its objectives and not excessively intrusive given the student’s age and sex and the nature of the infraction CGS § 54-33n).

School board policies related to the law provide that student lockers, desks, and other storage spaces remain the school’s property, and as such, are subject to periodic inspections by school authorities. The CABE policy outlines the circumstances under which school authorities may conduct a search (Recommendation § 5145.12). Although schools can conduct periodic or random searches, Chief Salvatore reports that he is unaware of any police department that conducts random searches on grounds. (He called six local police chiefs on the day this report was written to confirm his belief that police primarily venture on school grounds when invited by school officials).

On the issue of school searches, the United States Supreme Court has held that the standard for school authorities searches is reasonable suspicion (see New Jersey v. T.L.O., 469 U.S. 325 (1985)). Courts are not consistent about the standard required when police officers conduct the search. Some have held that a higher standard is required while others have not (for varying opinions see, James v. Unified School District, 959 F. Supp. 1407 (D. Kan. 1997); A.J.M. v. State, 617 So. 2d 1137 (Fla. App. 1993); and State v. Tywayne H., 993 P. 2d 251 (N.M. 1997)).

We are unaware of any state court decisions on when narcotics detection dogs can be used in searches on school grounds. The cases involving these dogs have centered on whether a sniff by them constitutes a search under Article I, § 7 of the state constitution. Article I, § 7 provides that:

The seminal state case involving the use of a trained narcotics detection dog is State v. Torres, 230 Conn. 372 (1994). The Court in Torres held that the police, who relied upon a highly accurate anonymous tip in stopping and conducting a canine sniff of a defendant’s vehicle, possessed a reasonable and articulable suspicion that the vehicle contained contraband. The Court declined to reach the issue of whether the canine sniff constituted a search under either the federal or state constitution "because: (1) we have found no case that has held such a sniff of an automobile, properly stopped by the police, to a standard more demanding than reasonable and articulable suspicion…(2) the defendant conceded that standard to be applicable to the facts; and (3) the canine sniff of the defendants automobile was based on reasonable and articulable suspicion."

A year later, the Connecticut Appellate Court held that even if a canine’s sniff of luggage left unclaimed at an airport baggage counter for over five hours constituted a search under the Fourth Amendment of the federal constitution, federal constitutional requirements were met since the police had reasonable and articulable suspicion regarding the luggage contents (State v. Smith, 38 Conn. App. 19 (1995)).

In 1997, the state Supreme Court upheld a trial court’s decision not to suppress marijuana found in a parcel in the defendant’s car. The Court again declined whether the canine sniff of a parcel constitutes a search under Article I, § 7 "because we conclude that even if it did, the state constitution requires no more than a showing that the investigating officers had a reasonable and articulable suspicion that the parcel contained contraband" (State v. Waz, 240 Conn. 365 (1997)).

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