STAR-BULLETIN / JULY 2007 Whitney White, with her drug-sniffing dog Custer, speaks to the Board of Education. Her business, Interquest Detection Canines of Hawaii, was part of a pilot project in Maui public schools this year.

Drug-dog program could start next year

Officials are unsure if the searches are legal, but plan to use them statewide if they are

The Board of Education has budgeted $300,000 to institute a drug-sniffing dog program in schools even as it deferred a decision on the program over legal concerns.

The money is earmarked in the $48 million supplemental budget request for 2008-2009, which still needs approval from Gov. Linda Lingle and the Legislature.

The board postponed Thursday night a vote on the canine patrols out of concern that students have a reasonable expectation of privacy in their assigned lockers.

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Education officials want $300,000 from the Legislature to launch a statewide drug-sniffing dog program as early as next year in case they win public support for the initiative.

The state Board of Education approved the money last week to roll out a drug-dog program listed in the Education Department's $48 million supplemental budget request for the 2008-09 fiscal year.

Board members passed the funding request during a meeting late Thursday night after discussing for three hours whether to expand a pilot program in which a dog found traces of marijuana at all three Maui public schools it visited this spring.

They postponed a vote out of concern the program could violate students' privacy, but still chose to ask lawmakers for the money while they weigh its possible legal implications.

"If by any chance this wouldn't materialize, then later on in the budget process, it would be dropped," said Education Department spokesman Greg Knudsen. Or, he said, lawmakers "might agree to shift it to some other kind of drug education program."

"But if it is approved, then we would need some money to implement it," Knudsen added.

The budget received unanimous support from the 13-member school board. Before being sent to the Legislature, it needs to be reviewed by Gov. Linda Lingle, who is waiting for the school board to agree on a final language for the drug-dog program before deciding.

"Overall, she supports the effort to ensure our schools remain drug-free," said her spokesman, Russell Pang.

Plans to have drug-sniffing dogs statewide gained momentum earlier this year when a golden retriever sniffed small plastic bags with marijuana residue or empty cans and bottles of beer or whiskey in public areas at Kalama Intermediate, Lahaina Intermediate and Lahainaluna High. Principals from those schools "were pleased" with the project, which was paid for by donations, said school board member Mary Cochran.

"It's just a strategy, just a deterrent," she said.

But civil-rights advocates say the department's push to broaden the program by allowing dogs to sniff students' lockers without reason or cause could lead to lawsuits. The state attorney general's office is reviewing the plan, which is tentatively scheduled to be considered at a school board meeting Oct. 18.

According to a 1985 U.S. Supreme Court ruling, public school students have "legitimate expectations of privacy," and officials need to establish "reasonable suspicion" before searching them, University of Hawaii law professor Jon Van Dyke said Thursday when testifying against the board's proposals.

Even then, dog sniffs would only be OK if schools can prove that "no other less intrusive alternative was available," wrote Van Dyke, quoting a decision by the 9th U.S. Circuit Court of Appeals, which has jurisdiction over Hawaii.

"The Hawaii courts, especially in the decisions that have come down in the last couple of years, in each case have assumed that the dog sniff or the dog screening is a search," he said Friday in an interview.

He said the Maui program was valid because the dog only went to common areas.

"Anybody can walk around the bushes and the bathrooms and look for things. There's no expectation of privacy in that context," he said.

Whitney White, owner of Interquest Detection Canines of Hawaii, which ran the Maui program, agreed that the debate over the legality of dog searches falls into "a gray area" that is open to different interpretations.

However, she said dog sniffs are not a search, but more like an alert that provides suspicion for an inspection.

White said she would be able to bring enough dogs from the company's corporate office in Texas to provide coverage at all Hawaii schools. The cost of the program would vary greatly depending on how regularly dogs visit campuses, she said.