Opinion · United States Court of Appeals for the Fifth Circuit
HORTON v. GOOSE CREEK INDEPENDENT SCH. DIST., 693 F.2d 524 (5th Cir. 1982)
ROBERT HORTON, AS NEXT FRIEND OF ROBBY HORTON, HEATHER HORTON & SANDRASANCHEZ, ON THEIR OWN BEHALF & ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,PLAINTIFFS-APPELLANTS, v. GOOSE CREEK Indep. Sch. DISTRICT,DEFENDANT-APPELLEE., 693 F.2d 524 (5th Cir. 1982)
- Type
- Opinion
- Court
- United States Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 1982-12-14
- Topic
- general
HORTON v. GOOSE CREEK INDEPENDENT SCH. DIST., 693 F.2d 524 (5th Cir. 1982) ROBERT HORTON, AS NEXT FRIEND OF ROBBY HORTON, HEATHER HORTON AND SANDRASANCHEZ, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,PLAINTIFFS-APPELLANTS, v. GOOSE CREEK INDEPENDENT SCHOOL DISTRICT,DEFENDANT-APPELLEE. No. 81-2215.United States Court of Appeals, Fifth Circuit.
Citator
UpLaw has not yet analyzed HORTON v. GOOSE CREEK INDEPENDENT SCH. DIST., 693 F.2d 524 (5th Cir. 1982). The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 1 opinion
HORTON v. GOOSE CREEK INDEPENDENT SCH. DIST.,693 F.2d 524(5th Cir. 1982)
ROBERT HORTON, AS NEXT FRIEND OF ROBBY HORTON, HEATHER HORTON AND SANDRA
SANCHEZ, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
PLAINTIFFS-APPELLANTS, v. GOOSE CREEK INDEPENDENT SCHOOL DISTRICT,
DEFENDANT-APPELLEE.
No. 81-2215.
United States Court of Appeals, Fifth Circuit.
December 14, 1982.
Richard A. Peebles, Baytown, Tex., for defendant-appellee.
[1] ON SUGGESTION FOR REHEARING EN BANC
[2] (Opinion November 1, 1982, 5 Cir., 1982,690 F.2d 470)
Before WISDOM, RANDALL and TATE, Circuit Judges.
[4] In its suggestion for rehearing en banc, the defendant complains that we have establishedPage 525a standard of reliability to be met by the drug-detecting dogs which is "clearly unattainable." The defendant contends that we "would require that a dog somehow be trained to alertonlywhen it is reasonably certain that drugs areonthe student's person, although the drugs are not visible and can be detected only by aroma."1
[5] The defendant has misconstrued our opinion. We did not say that the defendant must establish that there is areasonablecertaintythat contraband is present in the lockers or cars or even that there isprobable causeto believe that contraband will be found. Instead, we remanded the case to the district court for an evaluation of the reliability of the dogs so that the trial court might determine whether a dog's alert in fact gives rise to areasonable suspicionthat contraband is currently present.
[6] This is the kind of determination that can be made on the basis of evidence concerning the dogs' performance, and perhaps by other methods. If a dog alerts a hundred times and there is no contraband on ninety of those occasions, then an alert conceivably might not arouse a reasonable suspicion. On the other hand, if a dog occasionally alerts because contraband was formerly, although no longer, present, we cannot say in the absence of a fully developed record that the defendant has not met the test. The number of times that a dog alerts when contraband is no longer present, as well as the number of times when it alerts on a perfectly harmless substance, are all factors that go into the determination of reliability. It would be inappropriate at this point for us to say precisely what is necessary to create a reasonable suspicion justifying a search in the absence of a record on this subject or findings by the district court concerning the dogs' reliability.
- The defendant mentions "persons" but refers to690 F.2d at 482which deals with the further searches of the cars and the lockers. Since we held that the dogs could not sniff the children absent some form of individualized suspicion, we did not reach the question of when a further search would be justified after a dog had alerted on a person. ↩