Roe argues for students’ Constitutional rights
SCHOOL DRUG SWEEPS HAVE SUPPORTERS, FOES -- DOGS ARE DETERRENT - AND PRIVACY ISSUE
By PAULO LIMA, STAFF WRITER
Date: 04-22-2002, Monday Section: NEWS Edition: All Editions -- Two Star B, Two Star P, One Star B
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In the war against illegal drugs in schools, few tactics have as much impact as uniformed police officers leading drug-sniffing dogs down a hall of student lockers.
Authorities in Morris County have gone a step further, clearing out classrooms so that the dogs also can sniff students' purses and backpacks.
Most youths arrested in the drug sweeps have pleaded guilty rather than gone to court, authorities say.
However, a Boonton High School student who initially was charged with having four bags of marijuana in his backpack challenged the constitutionality of the search -- and saw authorities drop the case against him last month.
Morris County prosecutors declined to disclose why they dismissed the charges. But the teenager's lawyer believes the reason was obvious.
"This entire policy and procedure shocks the conscience of a free society and an educational environment conducive to learning," said the attorney, Kevin G. Roe of Hackensack. "Students have a right to privacy and they cannot be searched but for a showing of probable cause."
Authorities had charged Roe's 16-year-old client, a 10th-grader, with possession with intent to distribute marijuana after finding the pot-filled plastic bags during a Jan. 16 classroom canine sweep.
Administrators and police selected three classrooms at random for the search, according to a Boonton police report. They ordered students to leave their belongings and wait in a hallway while the dog sniffed through the classrooms. In one room, the dog was drawn to a girl's pocketbook, but a search revealed no drugs, the report says.
Roe said school officials had no reason to believe either his client or any other studenthad drugs on them that day. Thus, he said, police had no probable cause to conduct such a search.
There is no central entity coordinating or tracking random drug searches in New Jersey schools. Bergen, Passaic, and Morris counties all have some sort of program, although classrooms aren't searched randomly in Bergen and Passaic, officials there said.
Eugene Westlake, superintendent of the Northern Valley Regional School District in Bergen County, opposes summoning police for random drug sweeps.
"I think the term for that is `arbitrary and capricious,' " he said.
"We only do something when there is specific information available that would lead us to do that search," Westlake said. "In the zeal to do what is right, [some educators] might go beyond the purview of what the job really is."
Although municipal and county police agencies provide the personnel and dogs, a request for a drug sweep must come from school or district officials.
In Bergen County, such requests pass through the local police chief and ultimately must be approved by the Prosecutor's Office, said First Assistant Prosecutor Fred Schwanwede.
The Prosecutor's Office does not keep a log of such requests, but Bergen County Police Capt. Steve Babiak estimates that his department provides dogs for five to 10 school drug sweeps a year.
Locker sweeps alone can be an effective deterrent, Schwanwede said. In some cases, police may not even file charges, opting instead to allow the school to discipline the student administratively.
"If the kids think there may be a search of their lockers unannounced, they're going to leave the drugs outside school," Schwanwede said.
In Passaic County, sheriff's Lt. Ambrose Verrone estimated that his canine unit assists with 20 to 25 school drug sweeps a year.
"It may be once a week and we may go a couple months without doing one," Verrone said, adding that this year has been fairly slow.
Verrone said Wayne Valley and Clifton high schools regularly conduct drug sweeps, perhaps three or four a year. In fact, Verrone has noticed that affluent suburban high schools conduct the searches more often than urban schools. In almost two decades in the canine unit, Verrone said, he could not recall being summoned to either of Paterson's two large high schools, Eastside and John F. Kennedy.
No school is immune to drugs, he said, adding: "Anywhere there are schools, there is going to be narcotics."
Morris County appears to have the most active effort in North Jersey, involving about 16 schools and averaging three or four searches a month, said Sgt. Mike Rogers of the Prosecutor's Office narcotics unit. Some school districts are more zealous than others, he said.
Rogers, who has been overseeing the program since its inception in 1996, said the amount of drugs seized from lockers plummeted after the first few sweeps, which he attributes to the tactic's deterrent value. Drug sweeps in Morris schools now yield fewer than a dozen arrests per year, he said
Rogers says that success is the reason school administrators began asking police to expand the canine program from the traditional locker sweeps to classroom searches.
"When we did change over, we saw more arrests," he said. "It shows that what the administrators were saying was true: [Students] were comfortable carrying the drugs on them."
Rogers couldn't remember ever being called to testify at a hearing challenging the legality of such searches. "Most of the cases plead out," he said.
Attorney Roe's success in the Boonton case notwithstanding, authorities seem intent on retaining the tactic. Prosecutors point to the state Attorney General's School Search Policy Manual, published in 1998, which says a canine sweep is not technically a "search." As such, it says, police do not need probable cause before conducting one.
"The act of subjecting property to inspection by a law enforcement-handled canine simply cannot reveal anything private about the contents of the object being sniffed," says the manual, which devotes dozens of pages to outlining the procedures that law enforcers must follow to conduct a legal canine search.
The manual cites a 1983 U.S. Supreme Court decision involving luggage searches that called a dog sniff a "minimally intrusive" act. The manual also notes that the New Jersey Supreme Court "has not had occasion to issue a definitive ruling on this question."
The policy manual states further that authorities are not actually searching an item but, rather, using the dog's keen sense of smell to detect molecules floating about in the air surrounding lockers or backpacks.
Because the air surrounding those objects is in "plain view," neither the police nor the dog has intruded on a person's privacy, the attorney general's reasoning goes.
Opponents call that line of reasoning disingenuous and counterintuitive, because the point of using a dog is to find drugs.
"It is a search," Roe said. "It's not something that is ordinarily perceptible to the human senses."
Subjecting students to suspicionless searches is an inherent violation of the Fourth Amendment's protection against "unreasonable search and seizure," the opponents say.
Jeffrey Fogel, a former Rutgers University law professor and a self-described civil libertarian, cited a recent U.S. Supreme Court case that established that using infrared heat-detection devices - a common police technique for finding indoor drug greenhouses - is a search.
"The use of a dog to smell is very much like a heat-seeking device," Fogel said. "I think the analogy is very strong there that it does constitute a search."
Once a dog indicates drugs in a locker, police have a few ways of peeking inside.
They can apply for a search warrant, get consent from the student or parent, or just leave and let school officials open the locker. School officials are not subject to the same search and seizure restrictions as police.
Police in Bergen County pursue search warrants, prosecutors said. In Passaic County, the officers leave it to school administrators to search the locker and call police if they choose to prosecute.
Legal issues aside, some opponents argue that the searches needlessly disrupt the educational process, doing students more harm than good. Even those who support the program say educators must be careful about the effect.
"I think it sends an unfortunate message to students -- not simply that you don't trust them, but rather that they are not to be treated as partners in an environment which is supposed to foster respect," said Gregory Mark, a Rutgers law professor and president of the Randolph school district in Morris County.
Locker searches are done "infrequently" at the high school in his district, Mark said.
Mike Yaple, a spokesman for the New Jersey School Boards Association, said schools should include drug sweeps in their arsenal against drugs.
"Certainly, it's a very dramatic approach and it conveys a very strong message to the students that a school will not tolerate drugs." Yaple said.
"Some districts may do it when they see a growing drug problem in their schools. Some may do it when they receive tips. Some may do it to send a message.
"Should school districts really wait until there is a problem, until minds are ruined? If you're a good educator, you care about your students. You care about the minds."