Oral Argument Preview: Constitutionality of Searches by Public School Employees. State of Ohio v. Joshua Polk.

Update: On May 11, 2017, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On March 1, 2017, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio  v. Joshua Polk, 2016-0271. At issue is the constitutionality of the search by a public school security officer of a student’s book bag left on a school bus.

Case Background

On February 5, 2013, a school bus driver found a book bag left on the bus. The driver took the bag into the school, Whetstone High School in Columbus, and handed it to Robert Lindsey, the school safety and security coordinator. Lindsey, who is not a police officer, opened the bag and immediately found some papers with the name of a student, Joshua Polk.

Remembering a rumor that Polk was in a gang, Lindsey took the bag to the principal’s office, dumped out the contents, and discovered several bullets. The school then called the Columbus police. The principal, Lindsey, and a Columbus police officer subsequently found and detained Polk while Lindsey searched the bag that Polk was carrying.  Lindsay found a handgun in the bag.

Polk was indicted on a felony count of possessing a firearm in a school. He filed a motion to suppress, which was granted by the trial court. The trial court found that the initial inspection of the bag for safety and identification purposes was justified, but that the subsequent further dumping of its contents based on nothing more than rumors was impermissible, suppressing both the bullets from that search and the gun from the later search.  The court also found that the good faith exception to the exclusionary rule did not apply because the search was not supported by reasonable suspicion.

In a split decision authored by Judge Brunner, the 10th District Court of Appeals upheld the motion to suppress, finding the first cursory search appropriate, but then finding the decision to search an unattended bag based solely on a rumor of gang affiliation constitutionally insufficient, thus also invalidating the final search as fruit of the poisonous tree.  Judge Luper Schuster concurred in judgment only. Judge Dorrian agreed that the initial search of the bag for safety and identification purposes was reasonable, but dissented as to the propriety of the second search. She would remand the case for a proper determination of that issue, which would moot the question of whether the exclusionary rule applies in the public school context, which she sees as a yet undecided question.

Votes to Accept the Case:

Yes: Chief Justices O’Connor and Justices Lanzinger, O’Neill, and French.

No: Justices Pfeifer, O’Donnell, and Kennedy.

Key Statutes and Precedent

Fourth Amendment to the U.S. Constitution (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause… and particularly describing the place to be searched, and the persons or things to be seized.”)

Article I, Section 14 of the Ohio Constitution. (State constitutional equivalent of the Fourth Amendment to the U. S. Constitution.)

New Jersey v. T.L.O., 469 U.S. 325 (1985)(This is a key case in this appeal. Fourth Amendment ban on unreasonable searches and seizures applies to public school officials, but those officials may conduct warrantless searches of students so long as the searches are reasonable.)

Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, (1969).(Students do not shed their constitutional rights at the schoolhouse door.)

United States v. Leon, 468 U.S. 897 (1984)(Evidence obtained by way of a defective search warrant is admissible at trial, so long as the warrant was obtained in good faith and the officer had reasonable grounds for believing the warrant was properly issued.)

State v. Johnson, 2014-Ohio-5021 (Discussing good faith exception to the exclusionary rule.)

United States v. Rabenberg, 766 F.2d 355, 356- 4 357 (8th Cir.1985) (Reasonable to search unopened package in an unattended suitcase to protect all persons concerned “from dangerous instrumentalities.”)

Elkins v. United States, 364 U.S. 206 (1960)(Evidence obtained by state law enforcement officials in violation of the Fourth Amendment is inadmissible in federal criminal proceedings.)

Utah v. Strieff, 136 S.Ct. 2056 (2016)(Evidence seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.)

Ferguson v. City of Charleston, 532 U.S. 67 (2001). (The gravity of a threat cannot be alone dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.)

Yates v. Mansfield Bd. of Edn., 2004- Ohio-2491 (“[s]choolteachers, school officials, and school authorities have a special responsibility to protect those children committed to their care and control.”)

Ohio v. Clark, 135 S.Ct. 2173 (2015)( It is inappropriate to compare a teacher with law enforcement, because a teacher’s most pressing concern is protection of the students, while law enforcement officers gather evidence for use in criminal prosecutions.)

State’s Argument

The ultimate question under the Fourth Amendment is always whether the search or seizure is reasonable, which is determined by balancing the intrusion on the individual’s Fourth Amendment interests against the promotion of legitimate government interests. Balancing these interests, a public school’s interest in emptying an unattended bag for safety purposes outweighs the student’s limited privacy interests in the bag.

Given the special needs in a public-school setting, a search in that context need only be reasonable; probable cause is not required, nor is a warrant. A public school employee does not need individualized suspicion to search an unattended bag.  It is reasonable to search an unattended book bag for safety purposes, and emptying an unattended bag is a reasonable way to fulfill that purpose.

The search in this case was done pursuant to the school’s established policy of searching all unattended bags for safety and for identification purposes. Polk himself admits that “[t]he courts below correctly held that Lindsey possessed authority to inspect the book bag in order to identify its owner and to determine that it did not create a safety threat.” Yet Polk and his amici argue that after seeing Polk’s name on some papers, both purposes of the search were satisfied and any further search of the bag was unjustified. This is wrong. Schools must ensure order and a safe learning environment. Seeing Polk’s name on the papers was not enough to determine that the bag posed no safety threat. A more thorough search was needed to ensure that the bag contained nothing dangerous inside. Additionally, this school policy of searching all unattended bags is consistent with the inventory-search doctrine.

If the court finds the second search and later discovery of the gun was unreasonable, it should not apply the exclusionary rule. Any benefits of deterrence simply do not outweigh the costs to society in this situation.

The exclusionary rule does not apply to searches by public-school employees. Applying the rule in this context would do nothing to further the purpose of the rule, which is to deter future police misconduct. There is no evidence that Whetstone developed its policy to search unattended bags in conjunction with police or prosecutors. The search of the unattended bag found on the school bus was carried out by school authorities acting alone and on their own authority. It was not in conjunction with or at the behest of law enforcement agencies.

Public-school employees are not adjuncts to law enforcement. Public-school employees do not have the same adversarial relationship with students that police have with criminals, and so exclusion of evidence in criminal proceedings will result in no deterrence—let alone police deterrence—that would outweigh the substantial costs of suppression.

The exclusionary rule does not apply when non-law enforcement actors turn over evidence to law enforcement for use in a criminal proceeding. Furthermore, Lindsey, who is a civilian employee of the school, did not become a police agent merely by seeking the assistance of the school resource officer after discovering the bullets. Lindsey’s interest in searching the unattended bag was safety, not law enforcement.

The exclusionary rule serves to deter only deliberate, reckless, or grossly negligent conduct, or in some cases recurring or systemic negligence. Even if the exclusionary rule potentially applies to a search performed by a public-school employee, suppression should be governed by the same standard as would govern police. But neither of the lower courts ever held that Lindsey’s conduct was sufficiently culpable that the deterrence value outweighs the costs of exclusion.

Polk’s Argument

The search of Polk’s backpack was unconstitutional and all evidence obtained as a result thereof was properly suppressed per the rulings of the trial court and the Tenth District Court of Appeals.

Despite the lowered privacy expectations afforded to students in a school setting, Polk still retained a reasonable expectation of privacy in the book bag which was left on the school bus. Diminished expectation of privacy does not mean that there is no expectation of privacy.

Further, Polk’s backpack, which was left on the bus—a common occurrence among students– was lost or mislaid, but not abandoned. There is still an expectation of privacy in lost property. The Attorney General raised this abandonment argument, which was rejected by the court of appeals, for the first time on appeal in its amicus brief. Thus, the abandonment argument has been waived.

School Security Officer Lindsey did have the authority to search the bag initially to identify the owner and to determine it was not a safety threat. But Lindsey’s failure to terminate his search of the lost book bag once he determined the owner’s identity and that it did not create a safety threat resulted in the subsequent unconstitutional second investigative search, which lacked reasonable grounds. When lost property is turned in, the goal must be to ascertain its ownership and return it to the owner in substantially the same condition as it was received. And the state’s analogy to a police inventory search is inapt, and was not raised below.

The fact that the justification behind Lindsey’s second book bag search was to find out if the bag contained instrumentalities of wrongdoing associated with Polk’s possible gang affiliation, the fact that the results of that search were reported to the school resource officer, and the fact that ultimately the fruits of these searches resulted in Polk’s formal prosecution, all demonstrate that the school search policy is designed to gather evidence for law enforcement purposes, does not meet the school’s “special needs” search criteria, and was therefore unlawful.

The exclusionary rule is intended to exclude evidence obtained by public officials in violation of the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 14 of the Ohio Constitution. For this reason, it should and does apply to unreasonable searches conducted by Ohio public-school employees. Nor does the good faith exception apply here. The absence of a lawful special needs policy defeats any good faith exception argument. The good faith exception does not apply when the person doing the search relies on his or her own incorrect belief about the propriety of the search.

State’s First Proposed Proposition of Law

A search is constitutional if it complies with a public school’s reasonable search protocol. The subjective motive of the public-school employee performing the search is irrelevant

State’s Second Proposed Proposition of Law  

The sole purpose of the federal exclusionary rule is to deter police misconduct. As a result, the exclusionary rule does not apply to searches by public-school employees

State’s Third Proposed Proposition of Law

Suppression is proper only if the deterrence benefits of suppression outweigh its substantial social costs

Amicus Briefs in Support of the State

The Attorney General’s office filed a brief in support of the state. The AG argues that the appeals court made three errors.  First, Polk’s backpack was abandoned property, which eliminated any reasonable or legitimate expectation of privacy in the backpack. Therefore a warrantless search of the backpack did not violate the Fourth Amendment. The appellate court analysis should have ended there. Second, the appeals court failed to give the appropriate weight to the need for security and order in the school setting. Third, the appeals court erred in applying the exclusionary rule to school employees, and was wrong in finding the U.S. Supreme Court has held that it does.

The Ohio School Boards Association, joined by the Buckeye Association of School Administrators, the Ohio Association of Scholl Business Officials, the Ohio Association of Secondary School Administrators, the Ohio Federation of Teachers, and the Ohio Education Association filed a brief in support of the state. They argue that a school search is constitutional if it complies with a public school’s reasonable search protocol. Reasonableness under the circumstances is the touchstone in school search protocols. Here, the purpose of the second search was a safety search, pure and simple. The search was objectively reasonable; thus, the subjective motive of the public school employee performing the search is irrelevant. The safety of students and employees will be adversely affected if reasonable search policies are restricted.

Further, the court of appeals was wrong in extending the exclusionary rule to searches by school employees. School employees are not law enforcement officers. The sole purpose of the exclusionary rule is to deter police misconduct. As a result, the exclusionary rule does not apply to searches by public school employees.

Amicus Briefs In Support of Polk

The Ohio Public Defender Office (“OPD”), is the state agency responsible for providing legal representation to those accused of committing crimes who cannot afford a lawyer. OPD argues that the only reasonable search policy a school can adopt is one that mirrors established Fourth Amendment precedent. Schools cannot make otherwise unconstitutional actions legal by formally adopting such actions as a “search protocol.” In this case, no official school search policy was ever made part of the record. If the Fourth Amendment is to have any meaning inside public schools, then the second, more intrusive search—even if done pursuant to Whetstone High School’s search policies—must be found to be unconstitutional.

The Ohio Association of Criminal Defense Lawyers (“OACDL”) aims to defend the legal rights of those accused of committing crimes. In its view, the second search was illegal, under both the Federal and Ohio Constitutions. The school safety and security coordinator performed the same functions as a police officer, and his conduct should be measured accordingly. The results of the second search were fruits of the poisonous tree and should be suppressed under Article I Section 14 of the Ohio Constitution, which provides greater protection in this context than its federal counterpart. The exclusionary rule should be applied here; there is no reason to extend the “good faith” exception to this search.

The Justice for Children Clinic at the Ohio State University Moritz College of law provides students with the opportunity to represent children in a variety of legal proceedings, specifically aiming to ensure that minors and their rights are taken seriously. It argues that the exclusionary rule serves to protect individuals’ constitutional rights by deterring misconduct by public officials, specifically law enforcement. Public school employees like Lindsey, who despite his title essentially performs law enforcement functions, should be held to the same standards as law enforcement officers under the Fourth Amendment. And the exclusionary rule should apply to school employees acting in a law enforcement role.

The Juvenile Law Center is the oldest non-profit, public interest law firm for children in the country. It uses an array of legal strategies and legislative advocacy to promote fairness, prevent harm, ensure access to appropriate services, and create opportunities for success for youth in the foster care and juvenile justice systems. The Center, joined by many other similar organizations, (collectively, “the Center”) filed a brief in support of Polk.

The Center argues that the second and third searches of Polk violated the Fourth Amendment. Furthermore, the Supreme Court of Ohio should affirm the Court of Appeals’ holding that the exclusionary rule bars admission of evidence illegally obtained by school officials.

The exclusionary rule would deter school officials from violating students’ Fourth Amendment Rights and should apply to public-school employees, because they are state actors. The good faith exception should not apply. Since school officials increasingly refer students to law enforcement and the courts, their interests are sufficiently aligned with those of law enforcement. Thus, the threat of the exclusionary rule would deter them from violating students’ Fourth Amendment rights. Failing to apply the exclusionary rule in schools has grave consequences, such as fostering disrespect for the Constitution and pushing students into the “school-to-prison pipeline.”

Student Contributor: David López-Kurtz

 

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