Diane Doe, Etc. v. Omer Renfrow, Etc.
635 F.2d 582
7th Cir.
1980
Check Treatment

*1 CUMMINGS, аnd Before SPRECHER average Highland schools were at least BAUER, Judges. ‍‌‌​​​​‌​‌​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​‌‌‌​​​‌‌‌‌​‌​​‌‌​​​‌‍well better than at and could have been raid, other schools. At the time of

mоst as to they possessed information ORDER contraband, transactions particular drugs or for petition On consideration events, drug suppliers or or abusers. rehearing for en rehearing suggestion and Nevertheless, period of weeks a over a banc of 631 in the above- F.2d filed developed and executed that scheme was Diane by plaintiff-appellant entitled cause and implicated all members of a vote of the active dogs. humiliating search all to a requested, the Court was and a ma jority the active members March began raids at 8:45 A.M. on rehearing grant Court vote to ‍‌‌​​​​‌​‌​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​‌‌‌​​​‌‌‌‌​‌​​‌‌​​​‌‍were divided into 1979. The searchers judges original All on the banc* dog, one consisting of at least one teams petition for deny havе voted to handler, one school administrator rehearing. Accordingly, teacher, and one or two uniformed hand. dogs were on officers. Fourteen peti- that the aforesaid IT ORDERED IS raid, all schoolhouse be, For duration is here- rehearing tion for and the same tightly guarded locked or dоors were either by, DENIED. append- Swy- dissents are Judge Judges en banc. Their Fairchild gert, Cudahy grant this order. ed to voted to Wood and'

583 tor, sniffing officials. All students the air goes and school about him as he period first class- were detained in their about his business. Here there was evi- rooms; were led any latе arrivers or visitors dence that the dogs ran their noses in a room set aside for that to and detained along pupils’ legs, actually touching the allowed to leave purpose. No student was of bodies the students. classroom, claimed to any his or her and if The cases cited the district сourt as facilities, lavatory to use the school or holding that sniffing do not constitute and watched police authorities escorted totаlly a search are inapposite because in over them. sniffing those cases the were inani Every place student was instructed to his mate and ‍‌‌​​​​‌​‌​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​‌‌‌​​​‌‌‌‌​‌​​‌‌​​​‌‍objects unattended rather than on his belongings in view and his hands people. Here the probings by intrusive placed purses desk. Girls their on the floоr dogs were in no sense mere observation of between their feet. The teams of searchers “ ‘physical characteristics . . . constantly room, from and from desk moved room exposed public,’ . . . constituted [but] sniffed, single was Every to desk. student ‘severe, brief, type though intrusion inspected, аnd examined at least once upon personal security’ cherished joint school-police and a team. The subject to scrutiny.” Cupр constitutional v. extraordinary atmosphere at the school was 2000, Murphy, 412 93 U.S. S.Ct. supplemented representa- still further when 2003, (1973) (citations 36 L.Ed.2d 900 omit media, tivеs news and other ted). Kenaan, also 496 in by invited school entered the (1st 1974). F.2d 181 spec Cir. We need not during schoolhouses and classrooms the raid ulatе afar psychological about the trauma progress. and observed the searches while in suffered during the students this mass The raid lasted about threе hours. After accusing finger police search. The sniffing and examination of stu- may well remain for a upon lifetime these dents, high the searchers fоund fifteen young, impressionable minds. junior high school students-and stu- properly sought, Had a warrant been I possession dents-in illicit materials. am convincеd that none could have issued police five School and authorities removed consistent with the Fourth Amendment. high girls school students-three and two pos- and school officials neither boys-from their classrooms and attempted gain specific sessed nor infor- personal interrogations them to and thor- any particular mation about student. nude, ough, but not searches. None was There was to any also no information as possession any found to be in contraband. particular drug or contraband transaction junior high Three or four Thus, or event. all students were similarly junior treated and cleared. Four suspicion, under ‍‌‌​​​​‌​‌​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​‌‌‌​​​‌‌‌‌​‌​​‌‌​​​‌‍and there was no known high girls-were students-all removed from crime. classes, nude, interroga- stripped ted. Not оne of them was found to A search under these conditions is uncon any illicit material. suspi stitutional under either a reasonable Terry cion or а cause standard. judge The district held in an Ohio, 1868, 392 88 20 L.Ed.2d U.S. S.Ct. adopted by of this court that “the (1968); Mississippi, 889 Davis v. and its trainer within (1969); 89 22 676 S.Ct. L.Ed.2d classroom, request also at the and su- Illinois, 85, 100 Ybаrra v. 444 officials, U.S. S.Ct. pervision of the school was L.Ed.2d I consider 62 238 cannot of stu- aide that official’s observation this- a “school” case because the mass search sniffing dents .... of a trained nar- [T]he planned with extensive and executed detecting cotic canine is not a search.” I view, solely by involvement rather than strongly disagree. the circum- hardly personnel. stances of March can be likened But even considered cases, context of there was no to the observations of a school administra- “school” WOOD, Jr., justify here HARLINGTON reasonable Anker, Judge, dissenting. As I believе M. v. this case M. mass search. See significant impact raises with an issues be- aff’d, (E.D.N.Y.), 607 F.2d 588 F.Supp. 837 yond particular parties, respectfully these (2d 1979). was the Cir. Nоr constitutional ‍‌‌​​​​‌​‌​‌​‌‌​‌​‌‌‌‌‌‌‌​​​​‌‌‌​​​‌‌‌‌​‌​​‌‌​​​‌‍dissent. generally concerns by the abrogated fact violation expressed my other *3 by dissenting col- any arrests. The Fourth did not Howеver, leagues. without the benefit against unreasonable protects Amendment hearing, an banc I am reluctant to ex- right people of “thе searches because opinion an on the merits of those persons” to be in their whether secure issues. necessarily follow. not an arrest would CUDAHY, Judge, dissenting. Al- person’s per “cherished Violations of * though I to position express do not feel in a security” engaged sonal whether mеrits, I share views on the society elements of our violent antisocial eloquently expressed my concerns so col- overzealous, insensitive must be leagues. Both should be dealt with in condemned. legal consequences with that accordance

foster deterrence.

FAIRCHILD, Judge, dissenting. surely en banc and voted for Judge Swygert’s concern whether were used in a manner which itself RUIZ, Petitioner-Appellant, Frank J. in- without further individual intervention protected privaсy rights.

vaded I further question whether the record demonstrates CADY, Superintendent, Elmer O. responses that were suffi- Reformatory, Wisconsin State ciently reliаble indicators of the Respondent-Appellee. jus- contraband to constitute cause all, searches. it tifying the individual After United States appears although response that the canine Seventh Circuit. students, raised toward found to contraband. As to 6, 1980.* Submitted Oct. plaintiff gather probably that she respond caused the her because she playing morning with her

own which was in heat. I was

however, panel, a member of appeal,

read oral the briefs on nor hear

argument opportunity with

counsel, nor examine the record. I there- go expressing

fore toward at this no further

stage ap- on the merits of the

peal.

* 291, 295, Argument.” Cupp Murphy, of Oral 93 S.Ct. “Statement as Need 34(a); 14(f). Fed.R.App.P. L.Ed.2d 900 Rule Upon Ruiz has a statement. filed such consid- briefs, statement, preliminary After examination eration of record, the briefs Ruiz’ and the parties tentatively that it aрpeal court notified the this is submitted for decision unnecessary. argument decided that oral argument. without oral any party provided file a notice could