Lawyer: Dogs never sniffed youngest kids
Jon Benedict Argus Leader
http://www.argusleader.com/news/Saturdayarticle2.shtml
published: 7/27/2002
Drug-detecting dogs never sniffed students or entered classrooms of children younger than the third grade, according to a preliminary investigation by the lawyer for the Wagner School District.
The American Civil Liberties Union filed a lawsuit Thursday against the Wagner School Board and the city's police chief, saying students, some as young as 5 and 6 years old, were sniffed by dogs as local and federal officers searched the Wag-ner Community School in May.
The lawsuit said the students' Fourth Amendment rights against unreasonable searches and seizures were violated when the school performed the sweep using the dogs.
Ken Cotton, the school district's lawyer, said the dogs were never told to sniff students individually, and they remained leashed at all times. He said the search was reasonable because the school had received complaints about drug use among students.
Cotton said the parent of a third-grader and another of a sixth-grader each said their child reported seeing drug use or hearing their peers talk about it. "The principal took that as a serious complaint," he said.
Cotton said a recent survey in the school district showed about 40 percent of students in sixth grade or below thought drugs were a problem. That dropped to about 30 percent with students older than sixth grade.
Jennifer Ring of the ACLU of the Dakotas said, "We have done intensive investigating, and we stand by our complaint."
The ACLU's lawsuit says German shepherd dogs went through classrooms, and students were told to sit at their desks while the dogs were led through the aisles smelling students and their desks.
The class-action lawsuit, which was filed on behalf of 17 Native American students, said many students were frightened of the dogs. The lawsuit says the dogs were brought back about two weeks later for another search.
Statements questioned
Cotton emphasized that he has talked with only half of the school's administration and the school board president and that he will not conclude his investigation until next week. However, Cotton said, he has found the dogs entered only classrooms with students in the third through 12th grades.
"If that is true, it throws out the first four plaintiffs, who are younger than third grade, and it casts considerable doubt on the truth of all the other plaintiff statements," Cotton said.
Cotton said dogs went through classrooms containing third- through 12th-graders in late April and then those with seventh- through 12th-graders in early May.
Cotton said the dogs never sniffed the children except for one student who was pulled out of a class and smelled by a dog. No drugs were found, and that student is not part of the lawsuit.
The dogs were brought to the school by officers in the Bureau of Indian Affairs, Cotton said. He said the dogs were guided through the aisles of student desks with handlers tapping where they wanted the dogs to sniff. Cotton said the handlers did not tap any of the students.
"That's not to say that the dog may have wagged its tail and it bumped a student, or the dog
didn't give a passing sniff as it passed by," Cotton said.
But Ring said the dogs being that close to students was enough.
"I think this may be a question of interpretation," Ring said. "It's not like the dog has a nice little beeper on its nose saying it can sniff this centimeter and not that centimeter."
The suit also charged that at one point in a kindergarten class, a dog got loose, scaring students and causing one to urinate involuntary.
Cotton said he has found no proof that happened.
"From my understanding, the dogs were very well-behaved, well-mannered and well-handled," he said.
Cotton said he has two children in the school, and they told him the dogs were well-behaved. He said the dogs were in each classroom less than two minutes.
But Ring said they found otherwise. "We stand by our investigation," she said.
National implications
The case may create a debate over what is a reasonable search using drug-detecting dogs in schools to sniff students. Two U.S. Circuit Courts have ruled that there must be reasonable cause to allow dogs to sniff students, but the U.S. Supreme Court has never made a judgement.
The courts have ruled that allowing the dogs to sniff student property in schools is legal.
Cotton said the dogs have been used in Wagner for a couple of years. He said the district thought going through classrooms was the best way to search the students in the school.
"If you individualize it, I think that becomes discriminatory," Cotton said. "The beauty of this is that you go through quickly, the students are not disrupted for very long and you aren't singling a group out."
Cotton said if claims that the search was race-motivated or unreasonable were true, he suspects more students of the school of 1,100 would be complaining.
Ring said the ACLU report did not mention race as a factor.
Cotton is more concerned with drugs seeping down into younger-aged children than with whether the search was reasonable.
"If the suit does anything, it will bring attention to this growing problem," Cotton said. "We can argue all day about where the dogs went and who they sniffed and who wet their pants, but the real issue boils down to how we can provide a safe environment to educate our students."
Students typically don't see drug dogs
Allowing drug-detecting dogs to sniff students during school searches - as a lawsuit claims took place in Wagner this spring - is not a typical procedure, say several education and law enforcement officials.
The American Civil Liberties Union filed a suit Thursday against the Wagner school board and the city's police chief saying students, some as young as 5 and 6 years old, were sniffed by dogs as local and federal law enforcement did a search through the Wagner Community School in May. The school district's lawyer disputes the accusations in the lawsuit.
School districts routinely ask law enforcement agencies to bring drug-detecting dogs into schools to sniff lockers, parking lots or other student property.
Officials in other school districts said a search in which dogs were allowed to sniff students, including very young ones, would be unusual.
Gene Enck, executive director of Associated School Boards of South Dakota, said usually, the dogs do not even see students.
"I don't know why it went that way," Enck said about Wagner school search. "I don't know if that is necessary or not."
Jack Keegan, superintendent of the Sioux Falls School District, said drug-detecting dogs go through hallways smelling lockers at the city's high and middle schools about twice a year. He said the dogs have never gone through a Sioux Falls elementary school.
Keegan said the dogs do not have any contact with students, nor do they enter classrooms when students are present.
"You have to really use due care if they are smelling people," he said. "The dogs strike out and try to find that stuff."
The ACLU's lawsuit says a German shepherd was led through classrooms, and students were told to sit in their desks while the dog went through the aisles smelling students and their desks.
The class-action lawsuit, which was filed on behalf of 17 Native American students, said many students were frightened of the dog, and one kindergartner urinated involuntarily when the animal got loose in a classroom.
Sgt. Scott Sheldon, a supervisor of the South Dakota Highway Patrol's canine unit, says officers do not allow the animals to smell people. His unit does searches in many of the state's schools but was not involved in the Wagner search.
He said the patrol's dogs are active-alert trained, which means the animal bites and scratches at the smell of drugs.
While it is possible drug-detecting dogs could scratch or bite a human if they smelled a narcotic, Sheldon said, he did not want to comment because he did not know what type of dogs was used in the Wagner school.
"We've got 11 dogs, and we have not had any problems. They are well-mannered, well-trained and well-handled," Sheldon said.
Sheldon said passive-alert dogs, which sit or lie when they detect a narcotic, are mainly used by handlers when humans are sniffed.
Joe Graves, superintendent of the Mitchell School District, said it also does not allow the dogs to sniff students. He said when he was a superintendent in Iowa, the legal counsel to state schools warned that allowing drug-detecting dogs to sniff students could be illegal.
"It was specifically forbidden," Graves said. "It's just very uncomfortable to have an animal sniffing you."
Graves said he has not received a similar warning in South Dakota.
Duane Heeney, chief of police in Yankton, said his department would not use its dogs to sniff a person even if officers had probable cause that a person had drugs. He said officers would pat down the suspect.
"I just wouldn't understand that," he said of dogs sniffing elementary students. "I don't know all the facts of the case, but I personally would not do that.
"We don't do that with little kids. There's no indication there is a drug problem with that age group."
Heeney said his officers have never taken their dogs through an elementary school. However, he said, if there was a possible drug problem in the lower grade levels, they could go through them.
Graves said the problem could be there and officials just don't know it. "You never say never. In general, elementary school is a much less likely place for that," he said. "You concentrate your efforts where you think the problem is."
Enck agreed.
"We know that drugs are moving down into the elementary schools, but there needs to be a proper procedure."
Reach Jon Benedict at 331-2312 or at jbenedict@argusleader.com.
Use of Dog to Search Children For Drugs Prompts ACLU Suit
By Helen Rumbelow Washington Post Staff Writer
Friday, July 26, 2002; Page A10
http://www.washingtonpost.com/wp-dyn/articles/A2982-2002Jul25.html
The American Civil Liberties Union yesterday filed a lawsuit against school and police officials in a South Dakota town for using a drug-sniffing dog to search children as young as 6.
The ACLU said it believes this was the first case of a police dog being used to search elementary school children for drugs. The incident not only violated their Fourth Amendment rights but also left many young children "terrorized" in their classrooms, said Graham Boyd, lead ACLU counsel on the case.
In one kindergarten class, the dog escaped from its handler and chased screaming children around the room, the complaint alleges. In another class, it says, an 11-year-old girl who had been scarred in a pit bull attack two years earlier was traumatized when her teacher denied her permission to stand during the search.
The search was conducted on two separate days in May, according to the federal class action lawsuit filed in Sioux Falls on behalf of 17 Native American students at Wagner Community School, a K-12 school in the rural town of Wagner, near the Yankton Sioux Reservation. After the principal announced a "lockdown" over a loudspeaker, the complaint says, students were instructed to remain in their seats with their hands on their desks and to avoid making sudden movements when the dog passed them.
"We're seeing ever-more aggressive tactics in the so-called war on drugs, but what this school allowed was truly shocking," said Boyd.
Ken Cotton, the attorney acting for the school board, declined to comment because he said he had not had time to talk thoroughly to his clients.
"What I can tell you is that our school has always taken a very pointed view toward making sure the students have a drug-free environment," Cotton said.
Two other defendants are named in the suit, Eugene Niehus, chief of the Wagner Police Department, and Neil A. McCaleb, the assistant secretary of Indian affairs at the Department of Interior. The ACLU alleges that the dog's handler was a federal law enforcer under McCaleb's jurisdiction and that he was accompanied by local police. Neither agency returned calls for comment yesterday.
The ACLU contends that the search violated the Fourth Amendment right of those not suspected of a crime to remain free from searches by the police, and that it significantly extended the practice in many schools of using sniffer dogs to search lockers while the students are in class.
The ACLU has filed lawsuits in two cases of drug-sniffing dogs being used on high school students in the past three years, prevailing on appeal in a California case and settling a New Mexico case out of court last year.
Bernadette Raymond, the mother of four children named in the suit, said she believes there could be a racist motive behind the decision to use a dog to search the students, many of whom are Native American.
"It definitely scared my youngest son, Tod [who is 11], and my reaction was, how dare you intimidate my children for no reason? Do you think we're all drug addicts?" said Raymond.
© 2002 The Washington Post Company
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