      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00426-CV



                                In the Matter of D. H., Appellant




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. JV23870, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                                           OPINION


               Appellant D.H. was charged with possession of marihuana in a drug-free zone. See

Tex. Health & Safety Code Ann. §§ 481.121, .134 (West Supp. 2009). She filed a pre-trial motion

to suppress, which the trial court overruled. D.H. then pled true pursuant to a plea agreement, and

the trial court adjudicated her delinquent and placed her on probation for eight months. On appeal,

D.H. complains that the evidence was obtained in violation of her Fourth Amendment rights against

unreasonable search and seizure. See U.S. Const. amend. IV (barring unreasonable searches and

seizures of person or effects). We affirm the trial court’s judgment.


                                       Factual Background

               In October 2006, officers from the Austin Police Department arrived at Reagan High

School to conduct a canine search of the school.1 D.H., who was sixteen at the time, was a student


       1
          There was conflicting testimony related to whether the school requested the search or the
police asked to field test or train a drug dog. Although Assistant Principal Mike Perez testified that
the arrival of the canine unit was unexpected, he also testified that the school principal had told the
police that he would not object to the school being used for training purposes. Whether the canine
inspection was initiated by the school or the police officers does not impact our analysis.
at the school. Assistant Principal Mike Perez led the officers through the school, allowing the dog

to sniff several classrooms on each floor of each building. For every inspection, Perez entered the

classroom and informed the teacher of the sweep. The students were then instructed to leave their

property in the classroom and wait in the hall, and the police entered and allowed the dog to sniff

the items left in the room. The students were not allowed to refuse the instructions or to take their

items with them. When the officers searched D.H.’s classroom, the dog reacted to her backpack.

The officers called D.H. into the classroom, read D.H. her rights, and searched her bag, where they

found a small bag of marihuana.

               On appeal, D.H. contends that (1) her backpack was seized for Fourth Amendment

purposes when she was required to leave it behind in her classroom while she went into the hallway

as instructed, and (2) because neither the school nor the officers had reason to believe she was

engaged in criminal activity or in violation of school rules, they lacked reasonable suspicion to seize

her bag. For those reasons, she argues that the seizure of her backpack was a violation of her

constitutional rights and that the marihuana, as the fruit of an improper seizure, should have been

suppressed. See Mapp v. Ohio, 367 U.S. 643, 655 (1961) (holding that evidence obtained by

improper search or seizure is inadmissible).


                                        Standard of Review

               In reviewing a trial court’s decision on a motion to suppress, we apply a bifurcated

standard of review, giving almost total deference to the trial court’s determination of the historical

facts but reviewing the court’s application of the law to those facts de novo. Maxwell v. State,

73 S.W.3d 278, 281 (Tex. Crim. App. 2002). The trial court is the sole judge of the credibility of

                                                  2
witnesses and their testimony. Id. A defendant seeking to have evidence suppressed bears the initial

burden of proving that a warrantless search or seizure occurred. Bishop v. State, 85 S.W.3d 819, 822

(Tex. Crim. App. 2002). Once this burden is met, the State must then show that the search or seizure

was reasonable. Id. Here, there is no dispute that the alleged seizure of D.H.’s backpack was done

without a warrant. Therefore, the burden is on the State to show that the seizure was reasonable.


                                  Search and Seizure in Schools

               There being little or no Fourth Amendment authority directly addressing the question

of when a public-school student’s property may lawfully be seized by school authorities or the

police, we instead look for guidance to opinions related to student searches. Although probable

cause and a warrant are generally required before law enforcement may conduct a search, Board of

Educ. of Indep. Sch. Dist. No. 92 v. Earls, 536 U.S. 822, 828 (2002); Vernonia Sch. Dist. 47J

v. Acton, 515 U.S. 646, 653 (1995), “a search unsupported by probable cause may be reasonable

‘when “special needs, beyond the normal need for law enforcement, make the warrant and probable-

cause requirement impracticable.”’” Earls, 536 U.S. at 829 (quoting Griffin v. Wisconsin, 483 U.S.

868, 873 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J.,

concurring))); see Acton, 515 U.S. at 653.

               Although students in public schools “do not ‘shed their constitutional rights . . . at the

schoolhouse gate,’” their constitutional rights are not “‘automatically coextensive with the rights of

adults in other settings,’” and must be considered in view of the school environment. Morse

v. Frederick, 551 U.S. 393, 396-97 (2007) (quoting Tinker v. Des Moines Indep. Community Sch.

Dist., 393 U.S. 503, 506 (1969); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986);

                                                   3
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)). The Fourth Amendment requires

only that searches and seizures by school officials be reasonable. T.L.O., 469 U.S. at 337. The

public-school context requires a relaxed standard of reasonableness because insisting on “the warrant

requirement ‘would unduly interfere with the maintenance of the swift and informal disciplinary

procedures [that are] needed,’ and ‘strict adherence to the requirement that searches be based on

probable cause’ would undercut ‘the substantial need of teachers and administrators for freedom to

maintain order in the schools.’” Acton, 515 U.S. at 653 (quoting T.L.O., 469 U.S. at 340-41); see

Earls, 536 U.S. at 828-29; see also Safford Unified Sch. Dist. #1 v. Redding, 129 S.Ct. 2633, 2639

(2009) (school setting requires modification of necessary level of suspicion to standard short of

probable cause). In determining whether a search or seizure of a student or her property conducted

was reasonable, we first consider the nature of the implicated privacy interest, then consider the

character of the intrusion, and finally consider “the nature and immediacy of the

government’s concerns and the efficacy of the [school’s action] in meeting them.” Earls, 536 U.S.

at 830, 832, 834.


                                            Discussion

               D.H. does not contend that the dog’s inspection of her bag was a search for Fourth

Amendment purposes. Instead, she argues that requiring her to leave her backpack in the classroom

while she left the room was an unconstitutional seizure of her property and that she otherwise would

have carried it on her person, where the dog would not have been permitted to sniff it under




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Horton v. Goose Creek Independent School District, 690 F.2d 470, 479 (5th Cir. 1982).2 We need

not decide whether a seizure of D.H.’s property occurred, however, because assuming a seizure

occured, see United States v. Jacobsen, 466 U.S. 109, 113 (1984) (seizure occurs if there is

“meaningful interference” with individual’s possessory interests in property), the school’s actions

were reasonable and thus constitutionally permissible under the standards applied in a public-

school setting.

                  Keeping in mind that the Supreme Court has expressly refused to impose a

requirement of “individualized reasonable suspicion of wrongdoing” on schools’ attempts to prevent

student drug use, Earls, 536 U.S. at 837, we will consider the privacy interest that was impaired by

the seizure of D.H.’s backpack, the nature of the intrusion on that interest, and the nature of the

government’s concerns and the efficacy of the seizure in addressing them. Id. at 830, 832, 834.

                  We turn first to the privacy interest that was impaired by the alleged seizure. See id.

at 830. Students have a lessened expectation of privacy under the Fourth Amendment. Id.; see

Morse, 551 U.S. at 396-97 (stating that students’ constitutional rights must be considered in light

of public-school setting and are not automatically coextensive with those of adults in other settings).

“Securing order in the school environment sometimes requires that students be subjected to greater

controls than those appropriate for adults.” Earls, 536 U.S. at 831. We “‘cannot disregard the

schools’ custodial and tutelary responsibility for children,’” and must view the school environment

as a “backdrop for the analysis of the privacy interest at stake and the reasonableness of” the school’s


       2
          Horton held that allowing a dog to sniff student lockers located in a school’s public
hallways and automobiles parked in the school’s parking lot did not constitute a search under the
Fourth Amendment. Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 477 (5th Cir. 1982).

                                                    5
decisions. Id. at 830 (quoting Acton, 515 U.S. at 656). D.H. certainly had a legitimate privacy

interest in the contents of her backpack. See T.L.O., 469 U.S. at 337-38. However, considering that

D.H.’s backpack was not opened, nor were its contents examined, until after the dog alerted on it,

and bearing in mind the control and supervision that school authorities must properly exercise in

their roles as guardians and tutors of their students, see Earls, 536 U.S. at 830, we hold that

restricting D.H.’s ability to take her backpack with her implicated a relatively minor privacy interest.

               We next consider the nature of the alleged infringement on her privacy interests. On

the day in question, before the police officers and drug dog entered the classroom, Perez went in,

spoke to the teacher, and asked the students to step into the hallway. The students waited outside

the classroom while the canine inspection took place, and there was no risk that another student

might steal anything from or rummage through D.H.’s bag. 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. See id. at 834.

               Finally, we must weigh the invasion of D.H.’s rights against “the nature and

immediacy of the government’s concerns and the efficacy” of the seizure in meeting those concerns,

keeping in mind the context in which the seizure took place. See id. There is an important

“governmental concern in preventing drug use by schoolchildren,” and the drug problem seems to

                                                   6
be worsening. Id. The Supreme Court has held that “deterring drug use by schoolchildren is an

‘important—indeed, perhaps compelling’ interest,” Morse, 551 U.S. at 407 (quoting Acton, 515 U.S.

at 661), and characterized it as a “nationwide drug epidemic [that] makes the war against drugs a

pressing concern in every school,” Earls, 536 U.S. at 834.

               Assistant Principal Perez testified that he and the other administrators knew there was

a drug problem at the school and that “students have reported and we have found that there is enough

Marijuana being sold, used or kids coming back from lunch under the influence that it is something

we are always on the lookout for.” He said that student drug use can lead to belligerent behavior or

dangerous physical reactions, saying, “It becomes a serious safety issue for us at that point and the

drug question becomes secondary, because we have to deal with the student’s safety first.” Perez

testified that the school has written policies prohibiting drug possession on school grounds: the

school district’s code of conduct, which states that drugs are not permitted on school property; and

the campus handbook, which reiterates the district’s policy and specifies that marihuana is not

permitted. Students are given the handbook at the beginning of the year and are instructed to bring

it to their parents, who are asked to review the handbook, sign the back page, and return the signed

page to the school. Considering the low level of intrusion on D.H.’s limited privacy rights and the

evidence about the drug problem at Reagan High, we hold that the seizure effectively addressed the

problem of student drug use and served the important governmental interest in protecting the

students’ safety and health. See id. at 834-88.

                                            Conclusion

               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

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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. See Jacobsen,

466 U.S. at 125-26.3 We overrule D.H.’s issues and affirm the trial court’s judgment.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: March 5, 2010




       3
          See also Louisiana v. Barrett, 683 So.2d 331, 338 (La. Ct. App. 1996) (school required
students to empty pockets onto desk and leave classroom to allow drug dog to sniff belongings;
“Taking into account the decreased expectation of privacy defendant had as a student, the relative
unobtrusiveness of the search, and the severity of the need met by the search, we conclude the type
of search conducted in this case (wherein defendant was asked to empty his pockets and leave the
room) is reasonable and hence constitutional.”); Smith v. Norfolk City Sch. Bd., 46 Va. Cir. 238, 244-
45, 261 (Va. Cir. Ct. 1998) (students were required to leave belongings in classroom to be sniffed
by drug dog; “Balancing Condon’s lessened privacy interests and the minimal intrusion upon them
against the strong governmental concerns with drugs and guns, this Court concludes that Condon’s
rights were not violated by the brief seizure of his belongings.”).

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