Doran v . Contoocook Valley Sch. Dist. CV-07-307-PB 03/25/09
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Donna Doran, et a l . Civil N o . 07-cv-307 Opinion N o . 2009 DNH 032 v. Contoocook Valley School District, et a l .
MEMORANDUM AND ORDER
These cross motions for summary judgment concern a school-
wide search for illegal drugs that took place at Contoocook
Valley Regional High School (“ConVal High”) on June 7 , 2007.
Donna Doran, mother of ConVal High students Kasey and Kerri
Doran, and Gary Fischer, father of ConVal High student Silas
Fischer, have filed a petition alleging in separate counts that
the search violated the students’ rights under the Fourth
Amendment of the United States Constitution and Part I , Article
19 of the New Hampshire Constitution. Plaintiffs have sued the
Contoocook Valley School District, the Contoocook Valley School
Board, ConVal High Principal Susan Dell (collectively, “ConVal
defendants”), the Town of Peterborough, New Hampshire, and
Peterborough Police Chief Scott Guinard. The plaintiffs seek
declaratory and injunctive relief, as well as attorneys’ fees. 2 I. BACKGROUND
Plaintiffs’ children were all students at ConVal High and
were in school on June 7 , 2007, when Principal Dell implemented a
search of ConVal High’s building and grounds. The essential
facts concerning the search are not in dispute. Where major
differences are present in the parties’ descriptions of the
relevant facts, those differences are noted in the summary that
follows.
A. The History of Drug Use at ConVal High
The defendants executed the search on June 7 , 2007, because
various school and school board officials were concerned that
there was a serious drug problem at ConVal High.1
In 2005, ConVal High’s assistant principal, G. Bruce West,
wrote an open letter to the school community and expressed
concerns about a drug problem at ConVal High. (ConVal Defs.’
Mot. for Summ. J., Doc. N o . 17-2, at 2.) In the letter, West
details conversations he had with various members of the ConVal
High community, and acknowledges the growing perception that the
“level of use by our students is undermining our ability to
1 The plaintiffs dispute the extent to which the incidents set forth in this subsection constitute a “drug problem.” In setting out the facts as they are presented, the court adopts the phrase “drug problem” for the sake of convenience and clarity.
3 function effectively as an institution.”2 (Id. at 3.) Doran
herself acknowledged the drug problem among certain members of
the school population when she wrote to Dell after the June 7 ,
2007 search, “My kids tell me there is a very big problem and
nothing is being done about it.” (Id.) She wrote further in a
second email that the “kids tell me there is a lot going on and
they see deals going down all the time.” (Id.)
ConVal High officials distributed a “Youth Risk Behavior
Survey” for the students to fill out in 2005, which was a
“nationally representative survey of high school students
developed by the Centers for Disease Control and Prevention . . .
that compared results in 2003 and 2005.” (Id. at 5.) The survey
sought to evaluate the extent to which students were using or
experimenting with drugs, alcohol, or tobacco. The survey showed
that a majority of students were not engaging in “risky
behavior,” and revealed that close to seventy percent of the
student respondents had never been offered or given illegal drugs
at ConVal High. (Pls.’ Mot. for Summ. J., Doc. N o . 18-2, at 11.)
The survey did show, however, that thirty-two percent of ConVal
High teens reported that “they had been offered, sold, or given
2 In ruling on these motions, the court does not consider this statement for the truth of the matter asserted.
4 an illegal drug on school property in the past year . . . [which
represents] an increase from 30% in 2003 and is higher than the
statewide respondents in both 2003 and 2005 (28% and 2 7 % ,
respectively).” (ConVal Defs.’ Mot. for Summ. J., Doc. N o . 17-2,
at 6.) The survey also showed that within the month prior to the
survey, twenty-eight percent of ConVal High students reported using marijuana.3 (Id.)
A Student Assistance Team, made up of Dell, a school crisis
counselor, the school nurse, and others, was formed at ConVal
High to document student drug use, as well as other medical and
educational issues, and support those students needing more
serious attention. (Id.) According to Dell, the Student
Assistance Team’s recorded statistics from September 2001 through
February 2006 show that “[a]lcohol/Drugs AND academic issues
pervade many of the mental health, family based, and discipline
issues, but may be secondary to the primary concern.” (Id.)
Dell also states that in the 2006-2007 term, the school’s crisis
counselor saw thirty-three students (over approximately one
hundred and twenty-four visits) for “substance abuse, prevention,
intervention and referral,” which makes up twenty-percent of the
3 At the time of this action, ConVal High was made up of approximately 1100 students. (ConVal Defs.’ Answer, Doc. N o . 9, at 3.)
5 students he saw that year. (Id. at 7 ; see Pls.’ Mot. for Summ.
J., Doc. N o . 18-2, at 12.) During the 2005-2006 term, that
number was forty-three (or twenty-six percent of the students the
crisis counselor saw that year), and in the 2004-2005 term, it
was forty-five (or twenty-seven percent of the students he saw
that year). (ConVal Defs.’ Mot. for Summ. J., Doc. N o . 17-2, at
7.)
ConVal High officials also record the number of students
suspended for drug-related offenses. (Pls.’ Mot. for Summ. J.,
Doc. N o . 18-2, at 11.) During the 2006-2007 term, fourteen
students were suspended for drug use or possession. (Id.)
Seventeen students were suspended during the 2005-2006 term, and
twenty-three were suspended during the 2004-2005 term. (ConVal
Defs.’ Mot for Summ. J., Doc. N o . 17-2, at 8.)
During the summer recess in 2006, the ConVal School Board
established a Drug and Alcohol Review Committee to examine the
perceived drug problem at the school. (Id. at 4.) Various
members of the Committee spoke with people in the ConVal High
community about the use of drugs by students. Committee members
then shared these conversations at meetings throughout the
summer. (Id.)
6 Dell reports that during the 2006-2007 school year, six
students spent “extensive time in rehabilitation for drug
problems,” one student overdosed while at ConVal High and was
taken by ambulance to the hospital, and the ConVal High nurse
“conducted health evaluations on between 15 to 18 students who
were suspected of being under the influence of drugs.” (Id. at
8-9.) Dell also states that she received phone calls from
anonymous sources alleging that several students were engaged in
the dealing of drugs. When one suspect was searched, school
officials discovered $2,700 in his possession. (Id. at 8.)
The ConVal defendants agreed that there was a drug problem
at the school, and “reviewed and revised” the school’s drug and
alcohol policies in an effort to get the situation under control.
(Id. at 9.) In order to “set a tone for next year that their
policy is zero tolerance for drugs,” the ConVal School Department
and Dell determined that the use of drug sniffing dogs would be
an appropriate means by which to address their concerns. (Id. at
10.)
B. Preparations for the Drug Search
Throughout the summer and into the fall of 2006, the ConVal
defendants discussed, on various occasions, the possibility of
bringing police dogs into ConVal High. (Pls.’ Mot. for Summ. J.,
7 Doc. N o . 18-2, at 8-9.) Dell first reached out to Chief Guinard
in December 2006 about the plan for a canine search. The ConVal
School Board chairman, Thomas Welden, later emailed what
plaintiffs call a “directive” instructing Dell to make a formal
request. (Id. at 9.) Dell subsequently sent a letter to Guinard
formally requesting the police dogs for some time between May 29
through June 1 5 , 2007, which was forwarded to the New Hampshire
State Police. (Id.) It was agreed that ConVal High officials
would respond to whatever the search uncovered and that there
would be no police investigation or criminal prosecution.
(ConVal Defs.’ Mot. for Summ. J., Doc. N o . 17-2, at 1 0 ;
Peterborough Defs.’ Mot. for Summ. J., Doc. N o . 19-2, at 5.)
The scope of the search was left to Dell, though Guinard
explained the procedures governing how the police officers would
conduct a search using the dog. (ConVal Defs.’ Mot. for Summ.
J., Doc. N o . 17-2, at 1 1 ; Pls.’ Mot. for Summ. J., Doc. N o . 18-2,
at 10.) When, at first, she expected to only have one police dog
on hand, Dell decided that the students in one wing of the
building at a time would go to the theater while their rooms were
searched. (ConVal Defs.’ Mot. for Summ. J., Doc. N o . 17-2, at
11.) The initial plan also included a search of the gymnasium
and a wooded area, which Dell claims is known informally as the
8 “Pot Den.” (Id.)
The search plan was altered, however, when Dell learned that
several police dogs would be used in the search. A decision was
made to empty the school during the search because, with multiple
police dogs at work, it would be impossible to move students
simultaneously while conducting the search. (Id. at 12.) The
plan involved emptying the school without the use of the intercom
system, which the ConVal defendants said had the added benefit of
providing “an opportunity to practice informing students and
staff about an emergency in the event that the intercom system
could not be used when . . . a weapon or shooter was in the
building.”4 (Id.) The length of the search was unknown at the
time of preparation, but Dell determined that it would count
towards the ten drills that ConVal High was required to have
during the school year. (Id. at 13.) Dell maintains that the
drills generally last between thirty and forty-five minutes;
however, she notes that on certain occasions in the past, such as
during a bomb threat evacuation in 2006, the building was emptied
for approximately seventy-five minutes while the students stood
4 Plaintiffs point out that the usual procedures for responding to “gun fire” and “intruder” incidents involve a “shelter in place” approach wherein students remain in the classroom. (Pls.’ Resp., Doc. N o . 22-2, at 4.)
9 outside in cold, inclement weather. (Id.) During drills, Dell
states that the students are sent to either the parking lot or
football field, and in some cases, transported to another school.
When the school is emptied, ConVal High staff “must keep track of
the students for safety reasons and must ensure that students do
not leave the campus.” (Id.)
The ConVal School District’s stated policy governing
searches demands “reasonable suspicion” to search a student’s
personal items. (Pls.’ Mot. for Summ. J., Doc. N o . 18-2, at 7.)
The policy also requires the school official to identify the
suspected conduct that justifies the search, ascertain the source
of the information, and then assess the reliability of that
source. Moreover, the student handbook limits non-consensual
searches of a student’s property to those instances where the
administration “has reasonable grounds to believe the search will
turn up evidence that the student has violated or is violating
the law or rules of the school.” (Id. at 8.)
C. The June 7 , 2007 Drug Search
The School Is Emptied
On June 7 , 2007, at approximately 9:00 a.m., Dell sent a
statement for instructors to read to the students in each of the
classrooms. The statement informed students that the school was
10 conducting a drill without the use of the intercom system. It
told students to take the usual evacuation path out of the
building and then to proceed to the football field. Students
were also instructed not to take anything with them. Staff were
told not to inform the students of the nature of the drill, and
any student who did not want to leave his or her belongings
behind was taken, with those personal belongings, to the main
office. (ConVal Defs.’ Mot. for Summ. J., Doc. N o . 17-2, at 1 4 ;
Pls.’ Mot. for Summ. J., Doc. N o . 18-2, at 3.) The atypical
procedures left certain students, including plaintiffs’ children,
feeling “anxious and nervous.” (Pls.’ Mot. for Summ. J., Doc.
N o . 18-2, at 3.)
Once on the football field, students were instructed to
remain inside the track, and staff members, including the school
nurse and her assistant, were on hand to maintain order and
oversight. The students were not free to leave the track, though
they were escorted by staff to the bathroom facilities as needed.
While on the field, the students were not given food, water, or
sunscreen, and some students, though none represented in this
case, suffered sunburns. (Id. at 3-4.)
Kasey Doran, daughter of one of the plaintiffs, was in
chorus class at the time of the drill. When she asked what was
11 going o n , the instructor told her that he was unsure and that she
had to leave her purse behind. The purse contained her cellular
phone, portable music player, money, and personal hygiene
products. (Id. at 5.) Kasey was in a full leg cast, and when
she arrived at the field, she had to sit on the ground because
there was no more space in the bleachers. She felt trapped,
because it appeared that the gates surrounding the field were
locked. (Id.)
Kerri Doran, the other daughter of plaintiff Donna Doran,
was in English class when she was told to leave the room for the
drill. She, too, left behind her purse as instructed, and thus
left the purse’s contents – cellular phone, money, and personal
hygiene products – behind as well. (Id. at 6.) Kerri felt
crowded on the field, and when she moved towards the gates at one
point because she thought the students were being let back into
the building, she was rebuffed and told she could not leave.
(Id.)
Silas Fischer, son of plaintiff Gary Fischer, was in Applied
Technology class during the drill and was told that he could not
bring his jacket with him. (Id.) While exiting the building, he
saw staff members seizing a camera from one student and purses
from others. Silas was on the football field during his lunch
12 period, but when he asked if he could eat some of the food he had
in his pocket, his request was denied. Upon seeing one teacher
chase down a student who attempted to flee to his car, Silas did
not feel “free to leave or to act independently,” especially with
all of the school officials patrolling the area. (Id. at 7.)
The Police Dog Search
With the students gathered on the football field, three
officers from the Peterborough Police Department and two troopers
from the New Hampshire State Police arrived at ConVal High to
begin the search. The troopers had two police dogs with them.
Guinard was also present to introduce the school officials to the
troopers; however, he insists that he had no role in executing
(or planning to execute) the dog search. (Peterborough Defs.’
Mot. for Summ. J., Doc. N o . 19-2, at 6.) Once the search was
underway, Guinard returned to the police station. Dell began the
search in the school gymnasium and continued to move through the
school. The dogs and their handlers walked in front of the
uniformed officers and school administrators, and the dogs then
proceeded to sniff the students’ belongings. In the eight
instances in which dogs alerted, a Peterborough police officer
marked the bag, and ConVal High administrators decided whether or
not they would search i t . (ConVal Defs.’ Mot. for Summ. J., Doc.
13 N o . 17-2, at 15.)
Approximately ninety minutes after having exited the
building, the students were permitted to return. Much to the
surprise of Guinard, no illegal substances were found. (Id.)
Some of the students noted that their belongings had been moved.
Silas Fischer discovered that his bag was not where he had left
it. He found it in an administrative office, piled with other
bags, with the zipper pocket opened. (Pls.’ Mot. for Summ. J.,
Doc. N o . 18-2, at 7.)
II. STANDARD OF REVIEW
Summary judgment is appropriate when “the discovery and
disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A party seeking summary judgment must first identify the
absence of a genuine issue of material fact. Celotex Corp. v .
Catrett, 477 U.S. 3 1 7 , 323 (1986). The burden then shifts to the
nonmoving party to “produce evidence on which a reasonable finder
of fact, under the appropriate proof burden, could base a verdict
for i t ; if that party cannot produce such evidence, the motion
must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co., 95
14 F.3d 8 6 , 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323
IV. ANALYSIS
Plaintiffs argue that their children were the victims of an
illegal dog search of their belongings. They also argue that
they were illegally seized when they were forced out of ConVal
High and required to assemble on the football field. They allege
that this course of conduct violated the students’ rights under
both the United States Constitution and the New Hampshire
Constitution. The parties’ arguments with respect to each of
these sources of law are addressed in the pages that follow.
A. Claims Under the United States Constitution
Plaintiffs’ federal constitutional claims are brought
pursuant to 18 U.S.C. § 1983, which imposes civil liability “upon
any person who, acting under the color of state law, deprives
another individual of any rights, privileges, or immunities
secured by the Constitution or laws of the United States.”
Shuman v . Penn Manor Sch. Dist., 422 F.3d 1 4 1 , 146 (3d Cir.
2005). The thrust of the plaintiffs’ federal claims is that the
defendants violated their children’s rights guaranteed by the
Fourth Amendment.
The Fourth Amendment protects “[t]he right of the people to
15 be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures . . . .” U . S . CONST. amend.
IV. The United States Supreme Court has held that this
protection is applicable to searches and seizures conducted by
state actors, including public school officials, via the
Fourteenth Amendment. Vernonia Sch. Dist. v . Acton, 515 U . S .
646, 652 (1995); New Jersey v . T . L . O . , 469 U . S . 325, 336-37
(1985). Reasonableness is the touchstone in any assessment of
the constitutionality of a search or seizure, and while, in most
cases, reasonableness demands a warrant and a showing of probable
cause, such is not necessarily the case in the public school
context. Bd. of Educ. of Indep. Sch. Dist. v . Earls, 536 U . S .
822, 828-29 (2002). In the public school setting, the
constitutionality of a search of a student “depends simply on the
reasonableness, under all the circumstances, of the search.”
T . L . O . , 469 U . S . at 341. In considering the policy motivations
behind the Supreme Court’s holding in T . L . O . , as well as the
“unique responsibilities public schools bear,” other courts have
applied this same reasonableness standard to seizures that take
place in the public school context. Shuman, 422 F.3d at 148
Edwards v . Rees, 883 F.2d 8 8 2 , 884 (10th Cir. 1989); see also
United States v . Ferrara, 771 F . Supp. 1266, 1290 (D. Mass. 1991)
16 (broadly interpreting T.L.O. to stand for the proposition that
searches and seizures in public schools can be conducted without
warrant or probable cause).
Although it is undisputed that students “assuredly do not
‘shed their constitutional rights . . . at the schoolhouse gate,’
the nature of those rights is what is appropriate for children in
school.” Vernonia Sch. Dist., 515 U.S. at 655-56 (internal
citations omitted). A student’s rights must be considered in the
context of the reality he faces: compulsory attendance and
restrictions on movement and location “subject to the ordering
and direction of teachers and administrators.” Shuman, 422 F.3d
at 149. This understanding of context is essential to a proper
determination of reasonableness. T.L.O., 469 U.S. at 337. The
court, therefore, must carefully balance the students’ important
constitutional rights with the school officials’ “duty to provide
a safe environment conducive to education . . . [and] duty to
protect [the students] from dangers posed by antisocial
activities – their own and those of other students.” Horton v .
Goose Creek Indep. Sch. Dist., 690 F.2d 4 7 0 , 480 (5th Cir. 1982);
see Earls, 536 U.S. at 830 (noting the required balancing of a
student’s Fourth Amendment rights against “the promotion of
legitimate governmental interests”).
17 Plaintiffs challenge both the alleged search and seizure
that took place on June 7 at ConVal High. Thus, for purposes of
clarity, I will examine the search and seizure separately.
There Was No Search in Violation of the United States Constitution
The first issue is whether a search implicating the Fourth
Amendment occurred when the defendants used drug dogs to sniff
the school grounds and personal property of students at ConVal
High.5 Fischer asserts that his belongings were moved; however,
he does not contend that they were searched by either police or
school officials. Thus, Doran and Fisher’s legal challenges are
appropriately limited to the use of drug detection dogs on school
grounds to sniff the students’ personal property.
Courts across this country have taken up the issue of drug
detection dog sniffs in a variety of circumstances. The existing
precedents, those binding on this court and those merely
persuasive, leave little doubt that the mere use of trained drug
dogs on school grounds to sniff students’ personal items does not
qualify as a search within the meaning of the Fourth Amendment.
When confronted with cases involving dog sniffs for illegal drugs
in other contexts, the United States Supreme Court has repeatedly
5 None of the litigants in this case allege that their personal property was searched in any way other than by a dog sniff, and so they lack standing to challenge any of the specific searches of personal belongings conducted by school officials after the dogs alerted.
18 concluded that the Fourth Amendment is not implicated by such
searches. See, e.g., Illinois v . Caballes, 543 U.S. 405, 409
(2005) (“[T]he use of a well-trained narcotics-detection canine –
one that ‘does not expose noncontraband items that otherwise
would remain hidden from public view,’ during a lawful traffic
stop, generally does not implicate legitimate privacy interests .
. . Any intrusion on respondent's privacy expectations does not
rise to the level of a constitutionally cognizable infringement.”
(internal citations omitted)); City of Indianapolis v . Edmond,
531 U.S. 3 2 , 40 (2000) (“It is well established that a vehicle
stop at a highway checkpoint effectuates a seizure within the
meaning of the Fourth Amendment . . . a sniff by a dog that
simply walks around a car is ‘much less intrusive than a typical
search.’”); United States v . Place, 462 U.S. 696, 707 (“[W]e
conclude that the particular course of investigation that the
agents intended to pursue here – exposure of respondent's
luggage, which was located in a public place, to a trained canine
– did not constitute a ‘search’ within the meaning of the Fourth
Amendment.”).
Similarly, in United States v . Esquilin, the U.S. Court of
Appeals for the First Circuit held that a canine sniff of a hotel
room – wherein the canine sniffed furniture and a retail clothing
bag – was not a search. 208 F.3d 315, 318 (1st Cir. 2000). In
applying the holding of United States v . Place, the First Circuit
19 noted that the essential factor in the analysis is whether “the
observing person or the sniffing canine are legally present at
their vantage when their respective senses are aroused by
obviously incriminating evidence.” Id. (quoting United States v .
Reed, 141 F.3d 6 4 4 , 649 (6th Cir. 1998)). Other courts of
appeals have followed suit. See, e.g., United States v . Hayes,
551 F.3d 1 3 8 , 145 (2d Cir. 2008) (“[D]efendant has no legitimate
expectation of privacy in the front yard of his home insofar as
the presence of the scent of narcotics in the air was capable of
being sniffed by the police canine.”); Reed, 141 F.3d at 649
(“[T]he limiting and discriminating nature of a sniff does ‘not
constitute a search within the meaning of the Fourth
Amendment.’”); Jennings v . Joshua Indep. Sch. Dist., 877 F.2d
313, 316 (5th Cir. 1989) (“The use of trained canines to sniff
automobiles parked on public parking lots does not constitute a
search within the meaning of the fourth amendment.”); Horton, 690
F.2d at 477 (dog sniff of school lockers not a search under the
Fourth Amendment).
The same principles guiding the courts’ decisions that
canine sniffs of school lockers, cars, and luggage are not
searches within the meaning of the Fourth Amendment apply to the
sniffs of students’ personal belongings as well. A canine sniff
of personal belongings “does not expose noncontraband items that
otherwise would remain hidden from public view.” Place, 462 U.S.
20 at 707; see Horton, 690 F.2d at 477. It is less intrusive than
the typical search because it does not require an officer to
rummage through one’s bags. See Doe v . Little Rock Sch. Dist.,
380 F.3d 349, 355 (“Full-scale searches that involve people
rummaging through personal belongings concealed within a
container are manifestly more intrusive than searches effected by
using metal detectors or dogs.”). Moreover, a canine sniff only
identifies the presence or absence of narcotics, and this limited
disclosure ensures “that the owner of the property is not
subjected to the embarrassment and inconvenience entailed in less
discriminate and more intrusive investigative methods.” Place,
462 U.S. at 707. Of course, sniffs of one’s person raise an
entirely distinct – and more problematic – set of issues. See
B.C. v . Plumas Unified Sch. Dist., 192 F.3d 1260, 1267 (9th Cir.
1999) (noting that because “the body and its odors are highly
personal,” canine sniffs of one’s person are “highly intrusive”).
The facts at issue here, however, do not require the court to
wade into these troubled waters, because canine sniffs of
property implicate none of those concerns. Plaintiff’s students
were not illegally searched in violation of their Fourth Amendment rights.6
6 My ruling on this point should not be construed as an endorsement of the ConVal defendants’ decision to use drug dogs to sniff the students’ belongings. Reasonable people can argue that any drug problem at the school could have been addressed through other, less intrusive, interdiction methods. Instead, I
21 2. Holding the Students on the Football Field Did Not Amount to a Seizure in Violation of the United States Constitution Plaintiffs also allege that forcing their children to remain
on the ConVal High football field while the police dogs moved
through the school amounted to an unconstitutional seizure. The
traditional understanding of what constitutes a seizure – that “a
reasonable person would have believed that he was not free to
leave,” Shuman, 422 F.3d at 147 (quoting Michigan v . Chesternut,
486 U.S. 5 6 7 , 573 (1988)) – is analytically inapplicable to the
school setting, because “students are generally not at liberty to
leave the school building when they wish,” Couture v . Bd. Of
Educ. of Albuquerque Pub. Schs., 535 F.3d 1243, 1250-51 (10th
Cir. 2008); see Vernonia Sch. Dist., 515 U.S. at 654
(“unemancipated minors lack some of the most fundamental rights
of self-determination – including even the right to come and go
at will”). Thus, in the school setting, to qualify as a seizure
under the Fourth Amendment, “the limitation on the student’s
freedom of movement must significantly exceed that inherent in
every-day, compulsory attendance.” Couture, 535 F.3d at 1251
Here, however, there was no seizure. Briefly restricting a
student’s movement so as to facilitate a dog sniff is not the
type of limitation that constitutes a seizure in violation of the
merely hold that the use of drug dogs in this case does not qualify as a search under the Fourth Amendment.
22 Fourth Amendment. Plumas Unified Sch. Dist., 192 F.3d at 1269
(confining students to a designated area “for five to ten minutes
during an unquestionably legitimate dog sniff of the students’
classroom is not a seizure within the meaning of the Fourth
Amendment”). In Doe v . Renfrow, a student was instructed to
remain in her first period class ninety-five minutes longer than
usual while a canine sniff was conducted. 475 F. Supp. 1012,
1018-19 (N.D. Ind. 1979). The district court held that “[s]uch a
regulation of a student’s movement in no way denies that person
any constitutionally guaranteed right.” Renfrow, 475 F. Supp. at
1019, aff'd in part, rev'd in part, 631 F.2d 91 (7th Cir. 1980).
In reaching this conclusion, the court noted that an extended
first period was often employed on days when the school held
assemblies and other convocations. Id. Similarly, students at
ConVal High are evacuated from the building and corralled outside
with some frequency: ten times a year, for required drills, they
are confined to either the football field or parking lot and not
permitted to leave.7 (ConVal Defs.’ Mot. For Summ. J., Doc. N o .
17-2, at 22.) On June 7 , 2007, a similar evacuation took place,
and although it was not for an emergency drill, it was for an
entirely lawful purpose.
7 The June 7 drill was longer than the usual drills, but Dell maintains that the students only missed one “block” of school time, which she claims is not uncommon for drills. (ConVal Defs.’ Mot. for Summ. J., Doc. N o . 17-2, at 22.)
23 It is also worth noting that this exercise was not conducted
in a stigmatizing manner. No one student, or group of students,
was alone the target of a dog’s nose. See Earls, 536 U.S. at 837
(“A program of individualized suspicion might unfairly target
members of unpopular groups.”). As for the decision to detain
the students on the football field while the search was
conducted, this too, was a judgment sensitive to the students’
privacy interests, as it avoided the possibility that one of the
dogs could have sniffed a student’s person. See Horton, 690 F.2d
at 478 (noting that the Fourth Amendment “applies with its
fullest vigor against any intrusion on the human body”). In sum,
relocating the students to the football field, where they
remained under constant adult supervision, allowed the defendants
to conduct the search in a way that was both efficient and minimally intrusive.8
8 Plaintiffs complain that some of the other students suffered sunburns while they were held on the football field. One cannot reasonably infer from this, however, that the circumstances of their detention were physically abusive. I take notice of the fact that the high temperature for June 7 , 2007, in Concord, New Hampshire, was seventy-one degrees Fahrenheit. National Climate and Data Center, http://cdo.ncdc.noaa.gov/gclcd/QCLCD (last visited Mar. 1 0 , 2009); see United States v . Foreman, 369 F.3d 776, 786 (4th Cir. 2004) (courts can take judicial notice of weather). It is highly unlikely that the temperature was significantly higher in Peterborough. Moreover, it hardly seems plausible that the students were traumatized by a free period spent outside with their classmates on a nice day.
24 Finally, plaintiffs complain that Dell’s orders instructing
the students to leave their personal belongings inside the
building resulted in an improper seizure. I am unpersuaded by
plaintiffs’ argument. Again, the school setting is crucial to
the analysis. See Vernonia Sch. Dist., 515 U.S. at 655-56
Students are often restricted in what items they can bring to
school and where they can leave those items. Accordingly, I
reject plaintiffs’ contention that their children were seized in
violation of their Fourth Amendment rights.
B. Claims Arising Under the New Hampshire Constitution
Should Be Remanded to State Court Pursuant to 1367(c)
Having dismissed plaintiffs’ federal constitutional
challenges, the only remaining count is a claim based on the New
Hampshire Constitution. Accordingly, the court’s jurisdiction is
based on supplemental jurisdiction, and thus, the decision to
address Count 2 is wholly within the court’s discretion. See
Rodriguez v . Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir.
1995).
Based on State v . Pellicci, 133 N.H. 523 (1990), and In re
Juvenile 2006-406, 156 N.H. 233 (2007), plaintiffs argue that the
New Hampshire Constitution is more protective than the United
States Constitution with respect to searches and seizures.
Plaintiffs deserve a full and fair hearing on this issue, and
because the state court is better equipped to interpret the
distinctive contours of the state constitution’s analog to the 25 Fourth Amendment of the United States Constitution, this court,
pursuant to its authority under 18 U.S.C. § 1367(c), declines to
exercise supplemental jurisdiction over the remaining state law
claim. Instead, the case shall be remanded to state court where
it was originally filed.
VI. CONCLUSION
Plaintiffs motion for summary judgment (Doc. N o . 18) is
denied with respect to Count 1 . The court declines to exercise
supplemental jurisdiction over Count 2 , and orders that Count 2
be remanded to state court for resolution. Defendants’ motions
for summary judgment (Doc. Nos. 17 19) are granted with respect
to Count 1 .
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge March 2 5 , 2009
26 cc: Christopher Cole, Esq. Robert Derosier, Esq. Diane Gorrow, Esq. Barbara Ruth Keshen, Esq. Karyl Roberts Martin, Esq.