United States Court of Appeals

For the Eighth Circuit

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No. 12-1382

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Mellony Burlison, as parent and next friend of CM and HM, minors; Douglas

Burlison, as parent and next friend of CM and HM, minors

lllllllllllllllllllll Plaintiffs - Appellants

v.

Springfield Public Schools; Norm Ridder; Ron Snodgrass; James Arnott

lllllllllllllllllllll Defendants - Appellees

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 Appeal from United States District Court 

for the Western District of Missouri - Springfield

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 Submitted: January 15, 2013

 Filed: March 4, 2013

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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

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MURPHY, Circuit Judge.

Mellony and Douglas Burlison brought this action on behalf of their son C.M.

under 42 U.S.C. § 1983 and the Missouri Constitution, alleging that Springfield

Public Schools (the district), superintendent Norm Ridder, principal Ron Snodgrass,

and sheriff James Arnott violated C.M.'s constitutional rights by briefly separating

him from his backpack during a drug dog exercise in his high school classroom. The
district court granted summary judgment to the district, its officials, and the sheriff 1

after concluding that the policies used during the drug dog visit "appear[ed] to be

reasonable and not in any way a deprivation of a federal right." The Burlisons appeal,

and we affirm.

I.

C.M. was a freshman at the district's Central High School during the 2009 to

2010 school year. In April 2010 two deputies from the Greene County sheriff's

department arrived at the school with two drug dogs to conduct a brief survey of

randomly selected areas in the building. The survey was conducted in accordance

with school police services's standard operating procedure number 3.4.1. On the day

of the drug detection activity, C.M. wasinformed that his science classroomhad been

chosen to be sniffed by a drug dog. The dog was held by a deputy sheriff thirty to

fifty feet from C.M.'s classroom while a school police officer instructed the students

and teacher to leave the room. All backpacks, purses, and other personal items were

to be left behind. C.M. left his backpack and books in the room and went into the

hallway where he could no longer see his belongings. He alleges that his backpack

was fully zipped when he left the room.

Once the room was cleared of students, a deputy sheriff took the drug dog into

C.M.'s classroom. Video footage shows that the deputy sheriff and drug dog left the

classroom after approximately five minutes. During that time the drug dog did not

alert to anything. Although district personnel and the deputy sheriff who handled the

drug dog testified that no student possessions were searched in this classroom, C.M.

stated that after he went back inside he "felt like the pockets [of his backpack] had

been unzipped and stuff." 

The Honorable Richard E. Dorr, United States District Court for the Western 1

District of Missouri. 

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The director of the school police services department testified that he had

contacted the Greene County Sheriff's Department in October 2009 to request that

drug detection dogs visit each of the district's high schools during the 2009 to 2010

school year. Sheriff department policy 5-50-5 authorizes the use of canines for the

"[r]andom exploratory sniffing of luggage, packages or other inanimate objects . . .

in public facilities." After sheriff Arnott received the initial request fromthe director,

he assigned a captain to coordinate the use of drug dogs in the district high schools. 

That was sheriff Arnott's sole contact with the drug detection procedure, and he was

not present at C.M.'s school during the visit of the drug dogs in April 2010. 

The drug dog visit to C.M.'s high school was done in accordance with Board

of Education policy JFG and school police services's standard operating procedure

3.4.1. Policy JFG was enacted to "balance each student's right to privacy" with "the

need to maintain an appropriate learning environment." It permits student property

to be "screened in conjunction with law enforcement by using animals trained to

locate and/or detect weapons and prohibited drugs." The school police services's

procedure allows drug dogsto be used at the district'ssecondary school buildings "to

protect the safety and health of the [d]istrict's faculty, staff and students." It permits

dogs to sniff student lockers, desks, backpacks, and similar items when they are not

in the possession of students. The procedure states that "once a drug detection dog

has completed sniffing an area, the dog handler and drug detection dog will retire

from the area." The director of school police services has further clarified that a

student's possessions will only be searched if a drug dog has twice alerted on the

same property.

District personnel created procedures for drug detection surveys like the April

2010 visit to C.M.'s classroom in order to address a known drug problem in the

district. C.M. testified that he knew a lot of high school students were using drugs. 

District records show that the number of drug incidents in the district from 2000 to

2011 ranged from 89 to 205 per year. A school police officer from C.M.'s high

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school testified that he "frequently received reports from students, parents, and

teachers about the use of illegal and prescription drugs in the school." He handled

drug related incidents on average three or more times per week, leading him to

believe that "there was and is a drug problem" at the high school.

The Burlisons filed this action against the district on behalf of their son C.M.2

under 42 U.S.C. § 1983 and article I, section 15 of the Missouri Constitution.

Superintendent NormRidder, principal Ron Snodgrass, and sheriffJamesArnottwere

also named as defendants in their individual and official capacities. The Burlisons

sought a declaration that C.M.'s constitutional rights had been violated by the search

and seizure of his property, a permanent injunction, actual and nominal damages,

attorney fees, and other appropriate relief.

On cross motions for summary judgment, the district court granted it to the

district and the officials, concluding that the "written policies and procedures . . .

appear to be reasonable and not in any way a deprivation of a federal right." While

there "may [have been] an issue as to whether C.M.'s belongings were searched"

because C.M. had alleged that his backpack had been unzipped when he returned to

the classroom, none of the named defendants could be liable because they had not

performed the alleged search and neither C.M. nor his backpack had been seized.

Ridder, Snodgrass, and Arnott were not individually liable because they had not

participated in any alleged constitutional violation or failed to properly supervise

subordinates. The claims against Ridder and Snodgrass in their official capacities

were dismissed as "redundant to the claims against the [d]istrict," and Arnott was not

liable in his official capacity because nothing suggested that he had notice of an

unconstitutional policy.

The Burlisons also filed on behalf of their daughter H.M., but they state that 2

her claims are moot "because she is no longer a student and . . . [her] only claims were

for declaratory and injunctive relief." A suit by another parent was dismissed for

failure to prosecute. 

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The Burlisons appeal, arguing that the district court erred in concluding that

C.M.'s belongings had not been seized, that superintendent Ridder and principal

Snodgrass were not liable in their official capacities, and that sheriff Arnott was not

liable in his individual or official capacities. The Burlisons point out however that

they "have not pursued a claim that an unconstitutional search of C.M.'s belongings"

occurred since "the proper parties are not in this action." They also do not appeal the

district court's determination that Snodgrass and Ridder are not liable in their

individual capacities. See Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir.

2007).

II.

The Burlisons first argue that the district court erred in granting summary

judgment to the district as well asto Ridder and Snodgrass in their official capacities.

They contend that C.M.'s property was seized in violation of the Fourth Amendment

and article I, section 15 of the Missouri Constitution, regardless of whether the

seizure was completed in accordance with school police services procedure 3.4.1.

The district court's grant of summary judgment to the district and the officials is

reviewed de novo. AvidAir Helicopter Supply, Inc. v. Rolls-Royce Corp., 663 F.3d

966, 971 (8th Cir. 2011). Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. 

Id.

The Burlisons' claims against Ridder and Snodgrass in their official capacities

are in reality claims against the district. See Johnson v. Outboard Marine Corp., 172

F.3d 531, 535 (8th Cir. 1999). To succeed on their § 1983 claim against the district

the Burlisons must prove that the district acted under color of state law in a manner

that deprived C.M. of a constitutionally protected federal right. Van Zee v. Hanson,

630 F.3d 1126, 1128 (8th Cir. 2011). The Burlisons also raise a state constitutional

claimunder article I, section 15 of the Missouri Constitution which "is parallel to and

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co-extensive with the Fourth Amendment." State v. Johnson, 316 S.W.3d 390, 395

(Mo. Ct. App. 2010).

The Fourth Amendment protects the "right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures." The

Fourteenth Amendment extends this constitutional guarantee to searches and seizures

by state officers, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995),

including public school officials, Doe v. Little Rock Sch. Dist., 380 F.3d 349, 352

(8th Cir. 2004). A seizure of property under the Fourth Amendment occurs when

there is "some meaningful interference with an individual's possessory interests in

that property." Dixon v. Lowery, 302 F.3d 857, 862 (8th Cir. 2002) (quotation marks

and citation omitted). Not "every governmental interference with a person's property

constitutes a seizure of that property under the Constitution." United States v. Va

Lerie, 424 F.3d 694, 702 (8th Cir. 2005) (en banc). We concluded, for example, in

Va Lerie that the removal of checked luggage from a bus by a government agent was

not a seizure because it did not delay the person's travel or impact his freedom of

movement, affect the timely delivery of luggage, or deprive the carrier of custody of

the checked bag. Id. at 708.

The Fourth Amendment demands that seizure of property be reasonable, but

"what is reasonable depends on the context." New Jersey v. T.L.O., 469 U.S. 325,

337 (1985). A student's privacy interest "is limited in a public school environment

where the State is responsible for maintaining discipline, health, and safety." Bd. of

Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830

(2002). Students do retain Fourth Amendment rights at school, T.L.O., 469 U.S. at

338, but those rights "are different in public schools than elsewhere," Acton, 515 U.S.

at 656. That is because schools have a "legitimate need to maintain an environment

in which learning can take place." T.L.O., 469 U.S. at 340. Thus, a reasonableness

inquiry must consider schools' "custodial and tutelary responsibility for children" and

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the fact that students have a "lesser expectation of privacy than members of the

population generally." Acton, 515 U.S. at 656–57 (citation omitted). 

To determine whether a school's actions violated the Fourth Amendment, the

Supreme Court has "conducted a fact-specific balancing of the intrusion on the

children's Fourth Amendment rights againstthe promotion oflegitimate governmental

interests." Earls, 536 U.S. at 830. In considering the constitutionality of a school

policy requiring suspicionless drug testing of students who participate in

extracurricular activities, the Supreme Court considered "the nature of the privacy

interest allegedly compromised," "the character of the intrusion imposed," and "the

nature and immediacy of the government's concerns and the efficacy of the Policy in

meeting them." Id. at 830, 832, 834. In Earls, the Court concluded that the school's

policy was "a reasonable means of furthering . . . important interest[s] in preventing

and deterring drug use among its schoolchildren." Id. at 838.

Assuming that C.M.'s belongings were seized in this case when the school

police officer directed that they be left in the classroom for approximately five

minutes while the drug dog survey occurred, we conclude that the seizure was part

of a reasonable procedure to maintain the safety and security ofstudents at the school.

See T.L.O., 469 U.S. at 339. Since C.M. is a high school student, he has a "lesser

expectation of privacy" than the general public. Acton, 515 U.S. at 657 (citation

omitted). He was only separated from his belongings for a short period of time while

the deputy sheriff safely and efficiently completed the drug dog walkabout. 

Requiring students to be separated from their property during such a reasonable

procedure avoids potential embarrassment to students, ensures that students are not

targeted by dogs, and decreases the possibility of dangerous interactions between

dogs and children. See Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 479

(5th Cir. 1982).

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C.M.'s freedoms were not unreasonably curtailed by his brief separation from

his possessions because he normally would not have been able to access or move his

backpack during class time without permission. In Little Rock, 380 F.3d at 351, we

concluded that a school's search policy was unconstitutional where it required all

students to leave their belongings in a classroom and allowed school personnel to

search each student's property. We noted that a drug dog procedure like the one

completed in C.M.'s school in April 2010 would not raise the same type of

constitutional issues. Id. at 355. That is because such a drug dog survey is

"minimally intrusive, and provide[s] an effective means for adducing the requisite

degree of individualized suspicion to conduct further, more intrusive searches." Id.

The drug dog procedure at C.M.'s school was the type of minimally intrusive activity

which we referenced in Little Rock. C.M. was separated from his backpack only for

a short period of time and school personnel were only to search a student's belongings

if a drug dog alerted twice on the same property.

The district and its officials have shown an immediate need for a drug dog

procedure because there is substantial evidence showing there was a drug problem

in district buildings. The Supreme Court has repeatedly emphasized the strong

government interest in preventing drug use by students. See, e.g., Earls, 536 U.S. at

834. Drug problems in schools are "serious in terms of size, the kinds of drugs being

used, and the consequences of that use both for our children and the rest of us." Id. at

839 (Breyer, J., concurring). That is because "drug use carries a variety of health

risksfor children, including death from overdose." Id. at 836–37 (majority opinion). 

C.M. testified that he knew students at his school who used drugs and a school police

officer stated that he believed there "was and is a drug problem" at C.M.'s high

school. The district also provided records substantiating the number of drug incidents

from 2000 to 2011. According to those records the district had 154 drug related

incidents during C.M.'sfreshman year. The procedures used by district personnel and

the deputy sheriff at C.M.'sschool in April 2010 reasonably addressed concerns over

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drug usage in school in a manner that was minimally intrusive to students and their

belongings.

The district court noted that a genuine issue of material fact might exist

whether C.M.'s belongings were searched because he testified that his backpack was

zipped when he left the room and when "[he] came back . . . [he] felt like the pockets

had been unzipped and stuff." The district court concluded however that the

Burlisons could not challenge any alleged search because there was no evidence that

the named county or school personnel had searched C.M.'s belongings. C.M. could

not see inside the room, but his possessions were in the location where he had left

them when he returned to class. School and county personnel testified that they did

not search C.M.'s belongings, and the record does not reveal who may have touched

the zipper on C.M.'s backpack. The Burlisons concede on appeal that they are not

pursuing the alleged search because the "proper parties[are] not in this action." That

is significant because the "Search Clause [of the Fourth Amendment] is wholly

distinct from the Seizure Clause, such that courts applying these clauses must

understand they provide different protections against government conduct." Va

Lerie, 424 F.3d at 701 (citing Segura v. United States, 468 U.S. 796, 806 (1984)).

The Burlisons also argue that the seizure of C.M.'s belongings was "plainly

illegal" because it was not undertaken pursuant to judicial authority and was not

supported by individualized suspicion. The Supreme Court has specifically rejected

the need to obtain a warrant in a school setting, however, and instead has stated that

the legality of Fourth Amendment searches and seizures in school "should depend

simply on the reasonableness, under all the circumstances" of the activities. T.L.O.,

469 U.S. at 341. The Supreme Court has also rejected the idea that all searches or

seizures in a school must be supported by individualized suspicion. See Acton, 515

U.S. at 653. Also, in Earls, 536 U.S. at 837, the Court declined to require a school

to find individualized suspicion before drug testing students participating in

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extracurricular activities because the school was "attempting to prevent and detect

drug use by students."

We conclude that the brief separation of C.M. and his belongings was

reasonable and did not deprive him of a constitutionally protected right. The district

court therefore properly granted summary judgement to the district and to Ridder and

Snodgrass in their official capacities.

III.

The Burlisons next argue that the district court erred in granting summary

judgment to sheriff Arnott in his individual and official capacities. A government

official can be liable in his individual capacity if "a causal link to, and direct

responsibility for, the deprivation ofrights" isshown. Mayorga v. Missouri, 442 F.3d

1128, 1132 (8th Cir. 2006) (citation omitted). A supervising officer "can be liable for

an inferior officer's constitutional violation only if he directly participated in the

constitutional violation, or if his failure to train or supervise the offending actor

caused the deprivation." Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010)

(quotation marks and citations omitted). To succeed on a claim against Arnott in his

official capacity the Burlisons must show that "a constitutional violation was

committed pursuant to an official 'policy or custom' and thatsuch 'policy [or] custom'

wasthe moving force behind plaintiff's injury." M.Y. v. Special Sch. Dist. No. 1, 544

F.3d 885, 890 (8th Cir. 2008) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658,

694–95) (1978)).

The district court correctly concluded that Arnott is not liable under § 1983 in

his individual or official capacity. Arnott did not participate in the drug dog

procedure at C.M.'s school and he was not at the school for the drug detection

walkabout. See Parrish, 594 F.3d at 1001. He had received a request from the

director ofschool police services in 2009 to have drug dogs visit each of the district's

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high schools and assigned the matter to a captain. The resulting drug dog survey at

C.M.'s school was conducted pursuant to procedures established by the school's

police services and the sheriff's office, and there was no resulting constitutional

deprivation. See id. There is also no evidence that Arnott failed to train or supervise

the deputies who conducted the drug dog procedure at C.M.'sschool. There had been

no complaints related to the drug dog surveys before April 2010, and there is no

evidence that the sheriff's office should have believed that its procedures or actions

were likely to result in a constitutional violation. M.Y., 544 F.3d at 890.

IV.

For these reasons we affirm the judgment of the district court.

LOKEN, Circuit Judge, concurring. 

I agree that, if separating C.M. from his backpack for five minutes was a

seizure, it was objectively reasonable and thus did not violate C.M.’s Fourth

Amendment rights. I therefore join the opinion of the court. I write separately to

explain why I also agree with the district court that there was no seizure of C.M.’s

personal belongings within the meaning of the Fourth Amendment. Accord Doran

v. Contoocook Valley Sch. Dist., 616 F. Supp. 2d 184, 193-94 (D.N.H. 2009). 

A Fourth Amendment seizure of property occurs “when there is some

meaningful interference with an individual’s possessory interests in that property.” 

Jacobsen v. United States, 466 U.S. 109, 113 (1984). “By requiring some meaningful

interference with an individual’s possessory interestsin property, the Supreme Court

inevitably contemplated excluding inconsequential interference with an individual’s

possessory interests.” United States v. Va Lerie, 424 F.3d 694, 706 (8th Cir. 2005)

(en banc), (emphasis in original), cert. denied, 548 U.S. 903 (2006). In my view,

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instructing C.M. to leave his backpack and wait in the hall while a drug dog briefly

sniffed the classroom was, at most, an inconsequential interference. 

In Va Lerie, we concluded that moving a bus passenger’s checked luggage

before seeking consent to search was not a meaningful interference because it did not

delay the passenger’s travel plans or freedom of movement, delay delivery of the

luggage, or deprive the bus company of its custody of the luggage. Id. at 707-08. In

United States v. Clutter, 674 F.3d 980, 984 (8th Cir.), cert. denied, 133 S. Ct. 272

(2012), we concluded that temporary seizure of the defendant’s computers while

officers applied for a search warrant did not meaningfully interfere with his

possessory interests because he was in jail and his father consented to the seizure. 

Here, the interference with C.M.’s backpack was far less consequential. No

defendant physically moved or even touched the backpack, nor did the Burlisons

identify any other interference with C.M.’s possessory interests during the five

minutes he was separated from the backpack while on school premises. 

In considering the objective reasonableness that governs Fourth Amendment

issues, it is essential to consider the public school context in which this issue arose. 

Fourth Amendment protections extend to searches and seizures of students and their

belongings by public school officials. New Jersey v. T.L.O., 469 U.S. 325, 336-37

(1985). But because context matters, Fourth Amendment protections “are different

in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the

schools’ custodial and tutelary responsibility for children.” Vernonia Sch. Dist. 47J

v. Acton, 515 U.S. 646, 656 (1995). “To qualify as a seizure in the school context,

the limitation on the student’s freedom of movement must significantly exceed that

inherent in everyday, compulsory attendance.” Couture v. Bd. of Educ. of

Albuquerque Pub. Sch., 535 F.3d 1243, 1251 (10th Cir. 2008). 

C.M. retained some possessory and privacy interests in his backpack when he

brought it to school, like the purse at issue in T.L.O., but his freedom to take his

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personal belongings with him wherever he went on school grounds was necessarily

limited by the school’s “legitimate need to maintain an environment in which learning

can take place.” 469 U.S. at 340. For example, students may be required to leave

personal belongingsin lockersto reduce clutter in classrooms and hallways. And, for

reasons such as safety or an improved learning environment, students may be told to

leave their belongings in the classroom while they temporarily leave the building for

a fire drill, or proceed to a science lab or athletic facility in another part of the

building. Here, acting on established Board of Education and Sheriff’s Department

policies, defendants briefly separated a classroom of students from their personal

belongings to permit a drug dog to safely sniff the classroom for the presence of

illegal drugs. As the court thoroughly explains, the Supreme Court has repeatedly

emphasized the importance of dealing with the drug problemin our Nation’s schools. 

In these circumstances, I would affirm because no seizure of C.M.’s backpack

occurred. Of course, if the drug dog had alerted and the backpack then been

searched, additional Fourth Amendment issues would be presented.

COLLOTON, Circuit Judge, concurring.

I concur in Judge Murphy’s opinion for the court. It is unnecessary to decide

whether school officials effected a seizure of C.M.’s belongings, because any such

seizure was reasonable under the Fourth Amendment. As Judge Loken has chosen

to opine thatC.M.’s belongings were not seized, however, it is worth noting that there

is a substantial argument on the other side.

In United States v. Jacobsen, 466 U.S. 109 (1984), the Supreme Court said that

“[a] ‘seizure’ of property occurs when there is some meaningful interference with an

individual’s possessory interestsin that property.” Id. at 113. The Court held that the

standard of “meaningful interference” was satisfied when federal agents took

temporary custody of a package from Federal Express at an airport office for

investigative purposes, id. at 120, even before they conducted their investigation, id.

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at 124-25, because “the decision by governmental authorities to exert dominion and

control over the package for their own purposes clearly constituted a ‘seizure,’ though

not necessarily an unreasonable one.” Id. at 121 n.18. Similarly, the authorities here

separated C.M. fromhis property, thus depriving him of custody of the backpack, see

United States v. Alvarez-Manzo, 570 F.3d 1070, 1076 (8th Cir. 2009); cf. United

States v. Va Lerie, 424 F.3d 694, 702, 708 & n.9 (8th Cir. 2005) (en banc) (no

deprivation of custody), and the authorities did so “for their own purposes” of

investigating the presence of contraband in the property, as in Jacobsen, not to

facilitate a fire drill or school assembly unrelated to the property.

Presumably because the “seizure” issue is not an easy one, the Texas Court of

Appeals bypassed the issue en route to concluding that a comparable school

procedure was constitutionally reasonable. In re D.H., 306 S.W.3d 955, 958 (Tex.

App. 2010). The district court in Doran v. Contoocook Valley School District, 616

F. Supp. 2d 184 (D.N.H. 2009), although cited above as holding that the procedure

at issue effects no seizure of property, addressed only whether children (not their

belongings) were seized in the course of a school’s drug dog operation. Id. at 193-94. 

Insofar as the Doran court touched on the separation of children from their personal

belongings, the court addressed only whether there was an “improper seizure,” i.e.,

an unreasonable one, id. at 194 (emphasis added), and relied on the Supreme Court’s

discussion in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), which

emphasized that “the ‘reasonableness’inquiry cannot disregard the schools’ custodial

and tutelary responsibility for children.” Id. at 656 (emphasis added).

Given the difficulty of the “seizure” question, it is prudent to resolve this

appeal based on the reasonableness of the school’s procedure under the

circumstances. With these observations, I concur in the opinion of the court.

______________________________

 

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