Taylor Ziegler v. Martin County School District , 831 F.3d 1309 ( 2016 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11441
________________________
D.C. Docket No. 2:14-cv-14221-DMM
TAYLOR ZIEGLER, SARINA WHITE, KENDALL MCCORMICK, HALEY
O’HANNA, KAELYN DRAZKOWSKI, TYLAR JORDAN, MORGAN
KLEABIR, SCOTT BROTHERS, and TIM ALLEN,
Plaintiffs - Appellants,
versus
MARTIN COUNTY SCHOOL DISTRICT,
JENSEN BEACH HIGH SCHOOL, GREG LAWS, in his official capacity as
Principal of Jensen Beach High School, THERESA IULIUCCI, in her official
capacity as Assistant Principal of Jensen Beach High School, LORIE KANE, in
her official capacity as Dean of Students of Jensen Beach High School, NORM
BRUSH, in his official capacity as Resource Officer of Jensen Beach High School,
and WILLIAM SNYDER, in his official capacity as Sheriff of Martin County,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 28, 2016)
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Before MARCUS, JILL PRYOR and FAY, Circuit Judges.
FAY, Circuit Judge:
This appeal concerns constitutional violations alleged by students against
high school officials for detaining them for breathalyzer tests prior to entering their
Junior/Senior Prom as well as the high school, the school district, and county
sheriff. Summary judgment was granted to all defendants. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jensen Beach High School (“JBHS”), located in Martin County, Florida, had
scheduled its Junior/Senior Prom (“Prom”) for May 3, 2014, from 8:00 P.M. until
12:00 A.M. at the Port St. Lucie Civic Center (“Civic Center”). Prom tickets
specifically state “[n]o student will be admitted after 10 PM” and “[f]ailure to
comply will result in expulsion from the dance and possible disciplinary actions
that may include, but are not limited to, revoking of privileges, suspension,
expulsion, etc.” Amended Complaint, Ex. D (Prom Rules, stated on the back of
the Prom ticket). JBHS has a Zero Tolerance Policy regarding alcohol, drugs,
tobacco, and profanity on property controlled by Martin County School District or
a JBHS activity outside Martin County.
Each JBHS student who desired to attend the Prom was required to sign the
following Zero Tolerance Form:
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Jensen Beach High School, along with the Martin County School
District, has a ZERO TOLERANCE POLICY for alcohol, drugs, or
tobacco. Any form of tobacco, alcoholic beverages, or drugs is not
permitted on property owned or controlled by the Martin County
School District or at any school-sponsored activity, including activities
conducted outside of Martin County. Students and guests attending
such activities and events may be subject to a breath test.
Any form of profanity is strictly prohibited. School policies are
enforced.
Please be advised that failure to uphold these rules will result in
immediate disciplinary action and possible recommendation for
expulsion.
Please sign below to acknowledge receipt, and return this form to your
class/club sponsor.
Amended Complaint, Ex. C. Under the terms of the Zero Tolerance Form,
attending students knew they would be required to pass a breathalyzer test before
entering the Prom, if JBHS officials had reason to suspect they or their guests had
consumed alcohol.1
1
The School Board of Martin County has specific policies governing student search and seizure,
including breathalyzer testing:
SEARCH AND SEIZURE
The School Board recognizes that the privacy of students or their belongings may
not be violated by unreasonable search and seizure.
....
School authorities may search the person or property, including vehicles, of a
student, with or without the student’s consent, whenever they reasonably suspect
that the search is required to discover evidence of a violation of law or of school
policies. The scope of the search will be reasonable.
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The nine appellants (“Students”) were among approximately 37-40 students,
including guests, who arrived at the Prom on a party bus. 2 The Students, who had
gone to dinner before going to the Prom, had rented the party bus from Go Florida
Limo for May 3, 2014, from 5:30 P.M. until 11:30 P.M. for $3,000. The rental
was a one-way transportation to the Prom. Go Florida Limo prohibits alcoholic
beverages for passengers under age 21. Upon entering the party bus, the students
reported it had not been cleaned and used cups remained on board, apparently left
from another event transportation.
The party bus arrived at the Civic Center at approximately10:15 P.M. As
the student passengers exited to enter the Prom, Dean of Students Lorie Kane
stopped them and informed their bus would be searched. The party-bus passengers
were asked to stand aside. When all the students had exited the party bus, JBHS
This authorization to search shall also apply to all situations in which the student
is under the jurisdiction of the School Board.
Administrators are authorized to arrange for the use of a breath-test instrument
for the purpose of determining if a student has consumed an alcoholic beverage.
It is not necessary for the test to determine blood-alcohol level, since the School
Board has established a zero tolerance for alcohol use.
Amended Complaint, Ex. B (The School Board of Martin County, Bylaws & Policies, § 5771,
Search and Seizure (emphasis added)).
2
Students Scott Brothers and Tim Allen did not sign a Zero Tolerance Form, because they were
guests and not JBHS students.
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Resource Officer Norm Brush 3 asked the bus driver for permission to search the
party bus for drugs and alcohol, which was given by the driver. Officer Brush
boarded the party bus and found an empty champagne bottle and twelve plastic
cups inside the bus in plain view. When questioned by Officer Brush, the bus
driver said the champagne belonged to the student passengers on the party bus; all
aboard the party bus, including the Students, stated the champagne bottle did not
belong to them and denied knowledge of it.
Upon discovery of the champagne bottle and twelve plastic cups, Kane
informed the party-bus passengers they would be required to pass a breathalyzer
test before entering the Prom. JBHS Principal Greg Laws called JBHS Assistant
Principal Theresa Iuliucci, who had left the Prom to go home, and asked her to
return to the Civic Center, because she was the only JBHS official certified to
administer breathalyzer tests. Because all but two of the breathalyzer-testing
mouthpieces had been used in testing Prom attendees on an earlier bus, Principal
Laws also directed Kane to go to JBHS to obtain additional mouthpieces for the
breathalyzer testing of the students on the party bus.
3
Officer Brush has been employed by the Martin County Sheriff’s Office since February 2005.
Under a written agreement between the Sheriff of Martin County and the School Board of Martin
County, the Martin County Sheriff’s Office had established a School Resource Officer Program
that placed deputy sheriffs in public schools to assist in the prevention of juvenile delinquency.
At the time of the Prom, May 3, 2014, Officer Brush was the School Resource Officer assigned
to JBHS. Aff. of Norm Brush at 2-3, ¶¶ 2, 3, 4 (Jan. 9, 2015).
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Before, during, and after administration of the individual breathalyzer tests,
Officer Brush, in uniform, stood guard over the students, who had arrived on the
party bus. These students were assembled in line outside the Civic Center in sight
of their classmates inside the Civic Center; they were instructed not to speak with
classmates, who exited the Prom. It began to rain 4; the students subsequently were
moved to a covered area outside the Civic Center, where they continued to stand in
line to be breathalyzed. Iuliucci drove back to the Civic Center and arrived at
approximately 11:10 P.M. In addition to requesting Iuliucci’s return, some of the
students from the party bus asked if they could go home instead of being
breathalyzed, but Officer Brush and Kane told them they had to wait outside until
everyone on the party bus had been breathalyzed.
In her affidavit, Student Taylor Ziegler, who was first in line for
breathalyzer testing, averred the students from the party bus had to wait outside for
forty-five minutes for Kane to return to the Civic Center with the additional
4
Appellant Haley O’Hanna testified at her deposition:
Also it was drizzling. So we were outside in our prom dresses and there was no
cover. We were outside in our prom dresses and our tuxes, all, and it’s like
starting to drizzle. I know drizzling doesn’t sound that bad, but when it gets about
an hour and a half, it’s a lot. Especially when my hair is all done. I have a
beautiful dress on. So that kind of stunk.
. . . . They have us detained and we all have to stand over here. None of
us can leave. We’re all like, we want to go, we don’t even care about going to
[the P]rom anymore. This is 45 minutes we have been standing out [t]here in the
drizzling [rain] being detained and not allowed to leave.
Dep. of Haley O’Hanna at 56-57 (Dec. 16, 2014).
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breathalyzer mouthpieces. Aff. of Taylor Ziegler at 4, ¶ 28 (Jan. 21, 2015). She
stated “[t]he students started to get frustrated and asked if they could call their
parents and go home. Officer Brush and JBHS officials, however, told the students
they could not leave and had to wait outside until everyone was breathalyzed”;
Ziegler “did not feel free to leave.” Id. at ¶¶ 31, 32. Kane returned with the
breathalyzer mouthpieces around 11:10 P.M.; Iuliucci arrived at the Civic Center at
approximately the same time. Id. at ¶¶ 33, 34. Ziegler attested it took two to four
minutes for Iuliucci to administer a breathalyzer test to each student; the
breathalyzer test of the last student on the party bus was completed at
approximately 11:55 P.M. Id. at 5 ¶¶ 37, 46.5 Thirty-eight students were
breathalyzed; all passed with 0.00 blood-alcohol content. Id. at 6, ¶ 48. The Prom
ended at midnight. Ziegler explained: “After waiting to be breathalyzed outside in
front of the [P]rom venue for over an hour and half and being told I could not go
home until every person finished the test, I missed my senior [P]rom.” Id. at ¶ 50.
5
The brief of appellees Martin County School District, JBHS, Laws, Iuliucci, and Kane states
Iuliucci arrived at the Civic Center at 10:56 P.M., and Kane returned to the Civic Center with the
additional mouthpieces at 11:04 P.M., which means the breathalyzer testing began after 11 P.M.
Appellee’s Br. at 6. These appellees then state “Iuliucci completed the last breathalyzer test at
11:31 P.M.” Id. Using Student Ziegler’s affidavit statement of two to four minutes per student
for the breathalyzer test, appellees’ representation of about 30 minutes to breathalyze 38 students
does not compute mathematically. Appellees acknowledge in a footnote “[t]he evidence appears
to vary slightly regarding the amount of time it took to administer the breath tests, but there does
not appear to be a dispute that the tests were completed before midnight.” Id. at n.1 (emphasis
added). Even appellants’ counsel stated at oral argument the breathalyzer tests took 45 minutes
to an hour. Ziegler’s averring the last breathalyzer test was completed at 11:55 P.M., while
before midnight, when the Prom was over, means the students on the party bus missed their
Prom, because of the time they were detained for all the breathalyzer tests to be completed.
Ziegler Aff. at 5, ¶ 46.
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The JBHS officials’ purported purpose for not allowing any of the students from
the party bus to enter the prom until all the students had been breathalyzed was to
avoid unfairness resulting from the position of a particular student in line for a
breathalyzer test.6
Principal Laws specifically overheard Student Kendall McCormick use
profanity in a private conversation with her mother during preparation for and
administration of the breathalyzer tests; McCormick was suspended for three days
for violating the Zero Tolerance Policy. Similarly, Student Kaelyn Drazkowski
admitted to using profanity in the course of the breathalyzer testing; she also was
suspended for three days for violating the Zero Tolerance Policy. Drazkowski
subsequently gave a televised interview describing the incident on a local news
station. After the story aired, Drazkowski was summoned to Kane’s office, but she
was not disciplined. She alleges she was exercising her freedom of speech and
thereafter no longer felt free to state her opinions.
The operative Amended Complaint was filed by Students against Martin
County School District, JBHS, Laws, Iuliucci, Kane, Officer Brush (“School
Defendants”), and Martin County Sheriff William Snyder in the Southern District
of Florida. They allege violations of the First, Fourth, and Fourteenth
6
Despite allegations to the contrary in the Amended Complaint, the Students were allowed to use
the bathroom with a teacher escort while waiting to be breathalyzed, which was confirmed by
video evidence. The Students were not patted down or searched by JBHS officials other than
being administered a breathalyzer test.
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Amendments to the United States Constitution and 42 U.S.C. § 1983. Specifically,
they contend defendants’ searching the party bus, breathalyzing Prom attendees,
and seizing Prom attendees before and after administering breathalyzer tests
violated the Fourth Amendment; regulating the speech of certain students and
retaliating against Drazkowski for her speech violated the First Amendment;
breathalyzing students who arrived by party bus or limousine under JBHS policy
violated the Equal Protection Clause of the Fourteenth Amendment; and failing to
train its police officers properly regarding the Fourth Amendment by Martin
County Sheriff’s Office violated § 1983. The Students sought compensatory and
punitive damages, attorney’s fees, costs of suit, and declaratory relief regarding the
alleged unconstitutionality of the defendants’ conduct. The individual School
Defendants pled the affirmative defense of qualified immunity. Motions for
summary judgment were filed by the individual School Defendants as well as
Martin County School District, JBHS, and Sheriff Snyder. The district judge
granted all the defendants’ motions for summary judgment; this timely appeal
followed.
II. ANALYSIS
We review de novo the grant of summary judgment and construe the
evidence and draw all reasonable inferences in the light most favorable to the
nonmoving party. Baloco v. Drummond Co., 767 F.3d 1229, 1246 (11th Cir.
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2014). We apply the same legal standards that bound the district judge. Shuford v.
Fid. Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007). We
review de novo a district judge’s “interpretation and application of the law.”
NAACP, Jacksonville v. Duval Cnty. Sch., 273 F.3d 960, 965 (11th Cir. 2001).
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The determinative inquiry is “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512 (1986).
A. Fourth Amendment: Search and Seizure
At the outset, there is no dispute the students on the party bus arrived at the
Civic Center for the Prom after 10 P.M. on May 3, 2014. The JBHS Prom Rules
definitively state “[n]o student will be admitted after 10 P.M.” Amended
Complaint, Ex. D, ¶ 9 (Prom Rules). Because of their arrival at the Civic Center
for the Prom after 10 P.M., it is undisputed the students on the party bus could
have been denied entrance to the Prom upon arrival had the JBHS officials strictly
enforced the clearly stated Prom Rules. The searches and seizure about which the
Students complain likely would have been alleviated, if they had arrived timely at
the Civic Center for the Prom.
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The Students have focused their Fourth Amendment appeal on the
cumulative time period they were detained for the search of the party bus and
breathalyzer tests. They state the district judge “on multiple occasions
characterized this case as an allegation by the Students that the Defendants violated
their constitutional rights by delaying their entrance to [the P]rom. This case is not
about the Prom; it is about a denigrating two-hour detention with no cause.”
Principal Br. of Appellants at 11 (emphasis added).
Our Fourth Amendment analysis under the governing law will examine the
separate time periods the Students were detained after arrival at the Civic Center
for the Prom. We will address each alleged Fourth Amendment violation
following the students’ arrival at the Civic Center on the party bus. The
cumulative time the Students were detained while the JBHS officials conducted
their investigative searches, however, effectively caused the Students to miss their
Prom, which ended at midnight.
1. Legal Standards for School Searches Involving Students
“[T]he touchstone of the constitutionality of a governmental search” is
“reasonableness.” Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty.
v. Earls, 536 U.S. 822, 828, 122 S. Ct. 2559, 2564 (2002) (internal quotation
marks omitted) (concerning constitutionality of high school, urinalysis-drug-testing
policy). “Fourth Amendment rights, no less than First and Fourteenth Amendment
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rights, 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, 115 S. Ct. 2386, 2392 (1995)
(challenging random urinalysis-drug testing for students participating in
interscholastic athletics). “Securing order in the school environment sometimes
requires that students be subjected to greater controls than those appropriate for
adults.” Earls, 536 U.S. at 831, 122 S. Ct. at 2565. While “[t]he probable-cause
standard . . . is peculiarly related to criminal investigations,” the Supreme Court
has “held that a warrant and finding of probable cause are unnecessary in the
public school context because such requirements would unduly interfere with the
maintenance of the swift and informal disciplinary procedures that are needed” in
schools. Id. at 828-29, 122 S. Ct. at 2564 (citations, internal quotation marks, and
alteration omitted). The Court has recognized “in certain limited circumstances,
the Government’s need to discover such latent or hidden conditions, or to prevent
their development, is sufficiently compelling to justify the intrusion on privacy
entailed by conducting such searches without any measure of individualized
suspicion.” Id. at 829, 122 S. Ct. at 2564 (citation, internal quotation marks, and
alteration omitted).
“[T]he legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search.” New Jersey v. T.L.O.,
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469 U.S. 325, 341, 105 S. Ct. 733, 742 (1985) (emphasis added). Determining the
reasonableness of a search involving students “involves a twofold inquiry”: (1)
“whether the action was justified at its inception,” and (2) “whether the search as
actually conducted was reasonably related in scope to the circumstances which
justified the interference in the first place.” Id. at 341, 105 S. Ct. at 742-43
(citation and internal quotation marks omitted). “Under ordinary circumstances, a
search of a student by a teacher or other school official will be ‘justified at its
inception’ when there are reasonable grounds for suspecting that the search will
turn up evidence that the student has violated or is violating either the law or the
rules of the school.” Id. at 341-42, 105 S. Ct. at 743 (quoting Terry v. Ohio, 392
U.S. 1, 20, 88 S. Ct. 1868, 1879 (1968)) (footnotes omitted).
Questions regarding the reasonableness of a search or seizure based on
established facts must be decided by the trial judge and not the jury. United States
v. Edgerton, 438 F.3d 1043, 1047 (10th Cir. 2006) (“Where the historical facts
giving rise to the stop and detention are undisputed, the only question is one of
law, namely, whether the stop and detention, considered in light of the totality of
the circumstances, were reasonable.”); United States v. Jones, 269 F.3d 919, 927
(8th Cir. 2001) (“The ultimate determination of reasonableness under the Fourth
Amendment is a question of law which we review de novo.”). These applicable
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reasonableness principles guide our analysis of each search and seizure involving
the Students following their arrival at the Civic Center for the Prom.
2. Search of the Party Bus
a. Expectation of Privacy in the Rental Party Bus
The Students initially argue that, because the Prom was not at JBHS or
during school hours, it did not qualify as the type of school event for which the
T.L.O. reasonableness standard was applicable. The evidence, however, is
undisputed the Prom was organized by JBHS, and it was supervised and controlled
by JBHS officials. Prom tickets were purchased directly from JBHS; the JBHS
administration had to approve the students who desired to attend; and the students,
by signing their Prom tickets, acknowledged JBHS rules applied and agreed to
abide by them. The Prom Rules on the back of the Prom ticket state JBHS students
attending the Prom had to show valid JBHS identification to enter the Prom. The
Zero Tolerance Form, which all JBHS students attending the Prom had to sign,
specifically states it applied to off-campus activities, “including activities
conducted outside of Martin County.” Amended Complaint, Ex. C. The record
supports the conclusion this was a JBHS event that provided diminished privacy
for students who voluntarily attended, making the T.L.O. reasonableness standard
applicable. The rationale for using the reasonableness standard outside a
traditional school setting was explained by the Eighth Circuit Court of Appeals:
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The fact that the search occurred away from what one would consider
traditional school grounds similarly does not elevate the Fourth
Amendment standard to one of probable cause. The nature of
administrators’ and teachers’ responsibilities for the students entrusted
to their care, not school boundary lines, renders the Fourth
Amendment standard in the public-school context less onerous.
Shade v. City of Farmington, 309 F.3d 1054, 1061 (8th Cir. 2002);
see Earls, 536 U.S. at 837-38, 122 S. Ct. at 2568-69 (upholding under the Fourth
Amendment the constitutionality of the school-district policy of randomly
urinalysis-drug testing students participating in extracurricular activities); Vernonia
Sch. Dist., 515 U.S. at 664-65, 115 S. Ct. at 2396-97 (rejecting Fourth Amendment
challenge to random urinalysis-drug testing of student athletes).
The Students also contend they had a legitimate expectation of privacy in the
party bus for the duration of their rental, which was from 5:30 P.M. until 11:30
P.M. on May 3, 2014, for the Prom. There is no dispute, however, the Students did
not expect additional transportation on the party bus once they arrived at the Civic
Center for the Prom. 7 All the students had exited the party bus when Kane told
them to stand together away from the bus before entering the Prom, because the
party bus was going to be searched.
7
The party bus had picked up the Students from the Civic Center on May 3, 2014, driven them to
a local park for pictures in their Prom attire and then to West Palm Beach for dinner, after which
the party bus took them back to the Civic Center for the Prom. Some of the Students had driven
earlier to the Civic Center, where they had left their cars to depart after the Prom. Others were to
be picked up by their parents following the Prom.
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The student passengers on the party bus had left no personal belongings on
the bus to indicate they intended to return to the bus at any point after exiting to
enter the Prom. To assert a Fourth Amendment violation, an individual must
establish he or she had a legitimate expectation of privacy in the place searched.
Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S. Ct. 421, 433-34 (1978); United
States v. Brazel, 102 F.3d 1120, 1147-48 (11th Cir. 1997). “Establishing a
legitimate expectation of privacy is ‘a twofold requirement, first that a person have
exhibited an actual (subjective) expectation of privacy and, second, that the
expectation be one that society is prepared to recognize as ‘reasonable.’” United
States v. Ford, 34 F.3d 992, 995 (11th Cir. 1994) (quoting Katz v. United States,
389 U.S. 347, 361, 88 S. Ct. 507, 516 (1967) (Harlan, J., concurring)). A
reasonable expectation of privacy can be abandoned. Abel v. United States, 362
U.S. 217, 241, 80 S. Ct. 683, 698 (1960); United States v. Pirolli, 673 F.2d 1200,
1204 (11th Cir. 1982). “‘Abandonment is primarily a question of intent, and may
be inferred from words spoken, acts done and objective facts.’” Pirolli, 673 F.2d
at 1204 (quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973) (en
banc)).
The students who had occupied the party bus to the Civic Center left no
personal belongings whatsoever on the bus when they exited to go into the Prom.
None of them objected when they were told the party bus would be searched or
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mentioned they needed to return to the bus for any reason, which showed they did
not intend to return to the bus. Irrespective of the contract stating the rental
terminated at 11:30 P.M., the students who had arrived at the Civic Center at
approximately 10:15 P.M. were not relying on the party bus to transport them after
the Prom and had abandoned the bus, when they exited to enter the Prom. We
conclude the Students have not established an actual or reasonable expectation of
privacy in the party bus, which they had abandoned once they had exited for the
Prom.
b. Consent
After all the students on the party bus voluntarily had exited at the Civic
Center to attend the Prom and were standing aside waiting for the inspection of the
bus, Officer Brush asked the bus driver for permission to board the bus to inspect
it. He describes the search in his affidavit:
After all students exited the bus, I approached [and] asked the
bus driver if he was waiting to transport the students home at the end
of [the P]rom. The bus driver indicated that it was only a one way trip,
and that he was not waiting for the students. I then asked the bus
driver for permission to board the bus and check for any left property
or contraband. The bus driver said to “go ahead”, and he gestured
with his hands for me to enter the bus. There were no students on the
bus at the time I entered the bus. At the time I approached the bus, I
did not possess any reasonable suspicion to enter the bus and conduct
a search. However, I did inquire of the bus driver if he would give me
permission to inspect it. Had the bus driver said no, I would not have
entered the bus.
....
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After obtaining consent from the bus driver to look around the
party bus, I boarded the bus, and immediately upon stepping in the
aisle, I observed approximately one dozen red empty Solo cups in an
island bar and an open bottle of Venue DU Verney sparkling wine,
750 ml ALC 11% by volume. The empty bottle was room
temperature to the touch. The island bar and its contents were in plain
view and centrally located on the driver’s side of the bus.
Aff. of Norm Brush at 3, ¶ 6, 4, ¶ 8 (Jan. 9, 2015) (citation omitted). When Officer
Brush asked the driver about the champagne, the driver told him it belonged to the
students, whom he had transported to the Prom.
The Students argue the bus driver did not have authority to permit Officer
Brush to inspect the party bus. “‘A search of property, without warrant or
probable cause, is proper under the Fourth Amendment when preceded by valid
consent.’” United States v. Harris, 526 F.3d 1334, 1339 (11th Cir. 2008) (quoting
United States v. Dunkley, 911 F.2d 522, 525 (11th Cir. 1990)). “Valid consent
may be granted by a person with actual or apparent authority to give permission to
search.” United States v. Watkins, 760 F.3d 1271, 1279 (11th Cir. 2014) (citing
Illinois v. Rodriguez, 497 U.S. 177, 186-89, 110 S. Ct. 2793, 2800-01 (1990)). “A
third party who has ‘common authority over or other sufficient relationship to the
premises or effects sought to be inspected’ may give valid consent to search an
area.” Harris, 526 F.3d at 1339 (quoting United States v. Matlock, 415 U.S. 164,
171, 94 S. Ct. 988, 993 (1974)).
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The company from which the party bus was rented provided the driver for
the transportation. The rental contract gives the driver discretion to drop off any
unruly passengers. Consequently, the driver had authority over the party bus and
the student passengers under the rental contract. Because all the students being
transported to the Prom had exited the party bus, when Officer Brush boarded the
bus and asked permission to inspect it, the driver was the sole occupant. See
United States v. Eldridge, 984 F.2d 943, 948 (8th Cir. 1993) (“The driver of a car
has the authority to consent to search of that vehicle. As the driver, he is the
person having immediate possession of and control over the vehicle.”). From
Officer Brush’s perspective, the driver had apparent authority to consent to search
of the party bus. Therefore, the search of the party bus conducted by Officer Brush
did not violate the Students’ Fourth Amendment rights.
3. Detention of Students for Breathalyzer Testing
a. Detention Before Breathalyzer Testing
With valid consent of the driver, Officer Brush boarded the party bus and
immediately discovered the empty champagne bottle and twelve plastic cups in
plain view. When he left the bus holding the champagne bottle, Kane told the
student passengers on the party bus, who had been waiting outside the bus, to stand
in a straight line to be breathalyzed. Officer Brush said he had only two
breathalyzer mouthpieces, and the students would have to wait until someone
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drove back to JBHS to get more mouthpieces. In her affidavit, Taylor Ziegler
stated “[s]ome of the students asked whether two of the students could take the test
and go inside the [P]rom, but they were told that they had to wait outside in the
line until they picked up more [breathalyzer] sticks and until everyone was finished
being breathalyzed.”8 Aff. of Taylor Ziegler at 4, ¶ 24 (emphasis added). The
Zero Tolerance Form that all the student Prom attendees had signed states they and
their guests may be subjected to a breath test for JBHS activities conducted outside
of Martin County, which put them on notice they could be breathalyzed.
Iuliucci, who had gone home, was called by Principal Laws to return to the
Civic Center to administer the breathalyzer tests to the student passengers on the
party bus. He also asked Kane to drive to JBHS to obtain additional breathalyzer
mouthpieces for the testing. When it began to rain, the student line was moved to a
covered area of the Civic Center. Iuliucci and Kane returned to the Civic Center at
approximately 11:10 P.M. Ziegler attested the “students waited outside in a line
for 45 minutes to an hour for the breathalyzer sticks to arrive.” Id. at ¶ 28.
The initial detention of the students on the party bus for breathalyzer testing
meets the T.L.O. standard of being justified at its inception, because it was
reasonably related to the circumstances that caused the detention: to determine if
8
Even with two available mouthpieces, which could have been used for breathalyzing two
students, Iuliucci, the only JBHS official certified to administer a breathalyzer test, had left the
Civic Center to return home and was not there to test the students.
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students on the party bus had been drinking. 469 U.S. at 341, 105 S. Ct. at 742-43.
Officer Brush had found an empty champagne bottle and twelve plastic cups on the
party bus. When questioned by Officer Brush, the bus driver had said the
champagne belonged to the students on the party bus. These cumulative factual
findings by Officer Brush gave reasonable and sufficient cause to believe alcoholic
beverages had been consumed on the party bus by the student passengers.
Because of the public school setting, where “the State is responsible for
maintaining discipline, health, and safety” of the students, the School Defendants
had a legitimate government interest in conducting the breathalyzer tests on the
students from the party bus before allowing them to enter the Prom or to drive
themselves home. Earls, 536 U.S. at 830, 122 S. Ct. at 2565. If the consumption
of alcohol was proved, then it violated the JBHS Zero Tolerance policy for school-
sponsored activities outside Martin County and state law regarding underage
drinking. Administering a minimally invasive breathalyzer test to the student
passengers on the party bus was the only reasonable and determinative method to
know which students might have consumed alcohol in violation of the JBHS
policy. 9 “‘[A] school official may detain a student if there is a reasonable basis for
9
While “the administration of a breath test is a search,” the Supreme Court has recognized that
“the physical intrusion[, consisting of blowing “into a straw-like mouthpiece that is connected by
a tube to the test machine,”] is almost negligible,” and it entails “a minimum of inconvenience”;
a breathalyzer test is unlikely to cause embarrassment and “does not implicate significant
privacy concerns.” Birchfield v. N. Dakota, 136 S. Ct. 2160, 2173, 2176, 2178 (2016) (citations,
internal quotation marks, and alteration omitted).
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believing that the pupil has violated the law or a school rule.’” S.E. v. Grant Cnty.
Bd. of Educ., 544 F.3d 633, 641 (6th Cir. 2008) (quoting Wofford v. Evans, 390
F.3d 318, 326 (4th Cir. 2004)); see Harris v. United States, 928 F.2d 1113, 1117
(11th Cir. 1991) (“Where . . . the initial stop was legal, the [officer] had the duty to
investigate suspicious circumstances that then came to his attention.”). The School
Defendants did not violate the Students’ Fourth Amendment rights, because they
(1) had a reasonable basis for believing the Students had violated the Prom Rules
imposed by JBHS and state law, and (2) the detention was reasonably related in
scope.
The initial detention of the students on the party bus for approximately forty-
five minutes to an hour was waiting for the breathalyzer testing to begin. They
waited for Kane to go to JBHS to obtain additional breathalyzer mouthpieces for
the breathalyzer testing and return to the Civic Center and for Iuliucci to return to
the Civic Center from her home to administer the breathalyzer tests to the
individual students. As the district judge noted, the students on the party bus
arrived well after the 10:00 P.M. deadline for arrival at the Prom. This could have
been the reason Iuliucci, the only JBHS official certified to administer breathalyzer
tests, had departed. Consequently, the Students cannot fault the School Defendants
for not having someone on site to administer the breathalyzer tests immediately. In
addition, the judge further concluded the prior use of numerous breathalyzer
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mouthpieces was unforeseen, which resulted in the depletion of mouthpieces, when
the Students arrived on the party bus. Under the particular circumstances of this
Prom night, the initial waiting period for the breathalyzer mouthpieces and a
trained individual to administer the breathalyzer tests was reasonable, because it
was necessary for the testing. See United States v. French, 974 F.2d 687, 690 (6th
Cir. 1992) (determining detention of defendants while waiting for a drug dog
located fifty miles away was reasonable).
b. Detention to Administer the Breathalyzer Tests
Even if the seizure or detention of the students on the party bus was justified
at its inception, the Students argue on appeal the actual administration of the
breathalyzer tests was unreasonable in two respects. They initially contend it was
unreasonable for the School Defendants to detain them as a group until each
student from the party bus was breathalyzed, approximately forty-five minutes to
an hour. Their related and primary argument is, once each student was
breathalyzed and shown to have no alcohol in his or her system, the student should
have been free to leave, whether to go into the Prom; drive away in his or her car,
for those who had driven earlier to the Civic Center; or go home with parents.
The School Defendants maintain keeping all the students together until the
breathalyzer testing was completed was done for fairness, so the students tested at
the front of the line would not be advantaged by being able to go into the Prom,
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while the rest waited to be breathalyzed. The district judge found the School
Defendants’ decision to detain all the students from the party bus together until all
had been breathalyzed was reasonable under the circumstances to maintain order,
since Deputy Brush had reported some of the students had become disruptive while
waiting for all the students to be breathalyzed. Neither rationale as a basis for
holding all the students from the party bus until all had been breathalyzed
satisfactorily answers the core question presented in this case: once a student from
the party bus was found to be alcohol free by the breathalyzer test, why was he or
she not free to go, whether into the Prom or to leave by personal vehicle or with
parents?
The Supreme Court has held breath and urine tests implicate the Fourth
Amendment. 10 Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 614-16, 109 S.
Ct. 1402, 1411-13 (1989); see Maryland v. King, __ U.S. __, __, 133 S. Ct. 1958,
1969 (2013) (recognizing specifically administration of a breathalyzer test
constitutes a search under the Fourth Amendment). “Whenever an officer restrains
the freedom of a person to walk away, he has seized that person.” Tennessee v.
Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 1699 (1985). We have determined the
detention of the students on the party bus was reasonable while they waited to be
10
The Fourth Amendment provides “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
U.S. Const. amend. IV.
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breathalyzed, because of the champagne bottle and cups Officer Brush had found
during his search of the bus and the driver’s verification the alcohol belonged to
the student passengers. These factual findings indicated at least some of the
student Prom attendees on the party bus might have been drinking.
But the continued detention of all the students on the party bus until all had
been breathalyzed is another matter. We now hold, when government officials
need to conduct breathalyzer or urine tests on students, the testing must be
accomplished in a reasonably expeditious time period; once exonerated by the test,
the student must be free to go. Like urine testing for drugs, breathalyzer testing for
alcohol must be conducted quickly before the alcohol or drugs physiologically
dissipate in the student’s system. See Schmerber v. California, 384 U.S. 757, 770,
86 S. Ct. 1826, 1835, 1836 (1966) (noting “the percentage of alcohol in the blood
begins to diminish shortly after drinking stops, as the body functions to eliminate it
from the system,” which presents the risk the “evidence may disappear unless there
is an immediate search”). Delay in testing, certainly a substantial delay, would
render an inaccurate result. Testing must be accomplished in an objectively
reasonable time under the circumstances.
When a student is tested as alcohol or drug free, there is no justification for
continuing to detain the student with such definitive exculpatory evidence. We
conclude each student from the party bus who tested alcohol free reasonably
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should have been free to leave without being detained until all the students had
been tested. After their being delayed for the breathalyzer testing, some no longer
wanted to go to the Prom, which was about to end at midnight. Detaining a student
after he or she was found to be alcohol free was not “reasonably related” to the
reason for the detention “in the first place” of determining if the student passengers
on the party bus had been drinking. T.L.O., 469 U.S. at 341, 105 S. Ct. at 743.
c. Qualified Immunity
“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815
(2009) (citation and internal quotation marks omitted). “For a constitutional right
to be clearly established, its contours must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Hope v.
Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515 (2002) (citation and internal
quotation marks omitted). 11 “Because qualified immunity is an immunity from suit
rather than a mere defense to liability[,] it is effectively lost if a case is erroneously
11
We recognize there is an exception, when facts are egregious, as in Hope, where Alabama
prison guards who had handcuffed an inmate to a hitching post in the hot summer sun without a
shirt, water or bathroom breaks for seven hours violated the Eighth Amendment for cruel and
unusual punishment, which made them ineligible for qualified immunity. See also Lee v.
Ferraro, 284 F.3d 1188 (11th Cir. 2002) (denying qualified immunity to police officer, who used
excessive force in arresting a motorist for honking her horn in busy traffic). The circumstances
in this case, resulting in the Students’ detention, however, do not rise to that level.
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permitted to go to trial.” Pearson, 555 U.S. at 231, 129 S. Ct. at 815 (citation and
internal quotation marks omitted). “The essence of qualified immunity analysis is
the public official’s objective reasonableness, regardless of his underlying intent or
motivation.” Kingsland v. City of Miami, 382 F.3d 1220, 1231 (11th Cir. 2004).
For qualified immunity to apply, “the public official must first prove that he
was acting within the scope of his discretionary authority when the allegedly
wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)
(citations and internal quotation marks omitted). Clearly, the individual School
Defendants, Laws, Iuliucci, Kane, and Officer Brush were acting within the scope
of each’s respective authority at JBHS in the search of the party bus, which led to
the subsequent detention of all the students on the bus for breathalyzer testing for
alcohol, the crux of the Students’ case. At oral argument, their counsel conceded
he did not know of any case directly on point, where students were detained for a
breathalyzer or drug test and, although tested alcohol or drug free, had to remain
until all students were tested. We have not found such a case either. On the facts
of this case, the individual School Defendants are entitled to qualified immunity,
because there was no binding clearly established law12 at the time to inform them
12
“In this circuit, the law can be clearly established for qualified immunity purposes only by
decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of
the state where the case arose.” Lee, 284 F.3d at 1197 n.5 (citation and internal quotation marks
omitted).
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they had violated the party-bus students’ Fourth Amendment rights by continuing
to detain them after they were breathalyzed and found to be alcohol free.13
d. Remaining Defendants
The remaining defendants are Martin County School District, JBHS, and
Sheriff Snyder. On appeal, the Students have not addressed Martin County School
District and JBHS. Therefore, they have abandoned any arguments on appeal
regarding these defendants. See United States v. Ardley, 242 F.3d 989, 990 (11th
Cir. 2001) (“[W]e apply our well-established rule that issues and contentions not
timely raised in the briefs are deemed abandoned.” (collecting cases)).
In their reply brief, the Students complain the district judge did not address
their claim under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018
(1978), which held a municipality is not liable for constitutional deprivations under
respondeat superior, unless the constitutional violation resulted from a policy or
13
The Students’ contention JBHS had a de facto breath-test policy only for students arriving for
the Prom in party buses or limousines, which violated their Fourteenth Amendment, equal
protection rights is unavailing. There is no evidence in the record that such a policy existed,
formally or informally. “The Equal Protection Clause does not forbid classifications. It simply
keeps governmental decisionmakers from treating differently persons who are in all relevant
respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 2331 (1992). “[U]nless the
case involves a suspect class or a fundamental right, the Equal Protection Clause requires only
that the classification be rationally related to a legitimate state interest.” Bah v. City of Atlanta,
103 F.3d 964, 966 (11th Cir. 1997) (citation and internal quotation marks omitted). The School
Defendants supervising the Prom reasonably and rationally could have concluded students who
had rented a limousine or party bus to attend the Prom would not be driving to the Civic Center
and would be more likely to consume alcohol or drugs before arriving at the Prom. That would
be a reason “rationally related to a legitimate state interest” for treating students arriving at the
Prom in limousines and party buses differently from those who drove themselves or were driven
by parents or others. Id.
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custom. “[I]nadequacy of police training may serve as the basis for § 1983 liability
only where the failure to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” City of Canton v. Harris, 489
U.S. 378, 388, 109 S. Ct. 1197, 1204 (1989). A finding of deliberate indifference
requires evidence the municipality was on notice, meaning a plaintiff “must
present some evidence that the municipality knew of a need to train and/or
supervise in a particular area and the municipality made a deliberate choice not to
take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).
There was no notice to Sheriff Snyder about how Officer Brush handled the
detention for breathalyzer testing the night of the Prom, because there is no
evidence in the record that such a situation had occurred before this instance.
Moreover, we have determined Officer Brush is entitled to qualified immunity,
because holding students from the party bus after they had passed the breathalyzer
test until all the student passengers had been breathalyzed was not clearly
established law at that time. Consequently, there can be no liability for Sheriff
Snyder for failing to train Officer Brush in this regard.
B. First Amendment
Students Kaelyn Drazkowski and Kendall McCormick allege their First
Amendment rights were violated, when they were suspended three days each for
cursing in the course of the breathalyzer detention. The Zero Tolerance Form
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plainly states: “Any form of profanity is strictly prohibited.” Amended
Complaint Ex. C (Zero Tolerance Form). Consequently, they were on notice
cursing was prohibited at JBHS activities, including an event outside of Martin
County. The School Board permits discipline for students using profanity at a
school-sponsored event; the Zero Tolerance Policy form states “[s]chool policies
[will be] enforced” at the Prom. Id. It is uncontested the Prom was a JBHS-
sponsored event.
While recognizing “[t]he First Amendment guarantees wide freedom in
matters of adult public discourse,” the Supreme Court has differentiated “the
constitutional rights of students in public school are not automatically coextensive
with the rights of adults in other settings.” Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675, 682, 106 S. Ct. 3159, 3164 (1986) (citing T.L.O., 469 U.S. at 340-42,
105 S. Ct. at 742-43). “Surely it is a highly appropriate function of public school
education to prohibit the use of vulgar and offensive terms in public discourse”;
“[n]othing in the Constitution prohibits the states from insisting that certain modes
of expression are inappropriate and subject to sanctions.” Id. at 683, 106 S. Ct. at
3164. The First Amendment rights of students “must be applied in light of the
special characteristics of the school environment.” Hazelwood Sch. Dist. v.
Kuhlmeir, 484 U.S. 260, 266, 108 S. Ct. 562, 567 (1988). Consistent with these
principles, the JBHS officials were constitutionally correct in disciplining
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Drazkowski and McCormick for their cursing during the breathalyzer testing for
the Prom, because “it was perfectly appropriate for the school to disassociate itself
to make the point to the pupils that vulgar speech and lewd conduct is wholly
inconsistent with the ‘fundamental values’ of public school education.” Bethel
Sch. Dist., 478 U.S. at 685-86, 106 S. Ct. at 3165. No First Amendment violation
occurred to Drazkowski and McCormick for their respective suspensions for
knowingly failing to abide by JBHS rules during the breathalyzer-testing process.
Drazkowski pursues on appeal her claim of retaliation for her First
Amendment right to express her views regarding the Prom night, breathalyzer-
testing incident during a news program on a local station. But JBHS officials did
not punish her for this speech; instead, they voiced strong disapproval, and
Drazkowski contends punishment was threatened. See Morrison v. Bd. of Educ. of
Boyd Cnty., 521 F.3d 602, 609 (6th Cir. 2008) (recognizing in a § 1983 case
“absent proof of a concrete harm, where a First Amendment plaintiff only alleges
inhibition of speech, the federal courts routinely hold that no standing exists”).
The district judge did not rule on Drazkowski’s retaliation claim. At oral
argument, the Students’ counsel agreed we could address this issue de novo, if we
did so purely on a legal basis without the need for factual findings.
Accordingly, we have recognized the elements of a retaliation claim under
the First Amendment: (1) a plaintiff must establish her speech “was
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constitutionally protected,” (2) the “retaliatory conduct adversely affected the
protected speech,” and (3) “there is a causal connection between the retaliatory
action[] and the adverse effect on speech.” Bennett v. Hendrix, 423 F.3d 1247,
1250 (11th Cir. 2005). We adopted for this circuit a definition of an adverse
action, the second element of a retaliation claim: “A plaintiff suffers adverse action
if the defendant’s allegedly retaliatory conduct would likely deter a person of
ordinary firmness from the exercise of First Amendment rights.” Id. at 1254.
Drazkowski suffered no adverse action, because JBHS officials did not discipline
her; they simply expressed their displeasure at her describing the breathalyzer
testing the night of the Prom on a local news station. Moreover, she did so in a
context away from JBHS, where she broke no JBHS rules. Drazkowski was bold
enough to tell her view of the Prom night, breathalyzer incident on a local news
program, even though she had been disciplined for cursing during the breathalyzer
testing, and it was not the first time Drazkowski had been disciplined for cursing at
JBHS. Her history of failing to follow JBHS rules regarding her speech shows she
was not deterred by actual discipline, suspension. As a person of ordinary
firmness, Drazkowski clearly was not and would not be deterred in expressing her
views concerning the Prom night, breathalyzer testing outside JBHS, because
JBHS officials merely talked to her about it and did not punish her for it. On this
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record, Drazkowski has failed to establish a claim of retaliatory conduct by JBHS
officials.
III. CONCLUSION
As we have explained, the Students have not established they should
succeed on any of their allegations concerning their Fourth Amendment detention
by the School Defendants for breathalyzer testing on their Prom night or their First
Amendment and Fourteenth Amendment claims. In according the School
Defendants qualified immunity, we have established the requirement in our circuit
that, when a student is exonerated by a test with an immediate result, such as a
breathalyzer or urine test, that student can no longer be held after being shown to
be alcohol or drug free. The district judge correctly granted summary judgment to
all the defendants.
AFFIRMED.
33