What’s On Their Minds: 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.

“This was a backpack sitting on an empty school bus.  In this day, that’s concerning. I can’t help but look at this from a very practical perspective, perhaps as a parent, and think, everybody knows a backpack sitting there by itself can be a dangerous thing.”

Justice French

On March 1, 2017, the Supreme Court of Ohio heard 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 coordinator 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 principal then contacted the school resource officer, who is a police officer assigned to the school. The principal, Lindsey, and the school resource officer then found and detained Polk while Lindsey searched the bag that Polk was carrying.  Lindsey 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 nixing of the second search.

Read the oral argument preview of the case here.

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.”)

New Jersey v. T.L.O., 469 U.S. 325 (1985)(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.)

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.)

At Oral Argument

Arguing Counsel

Seth L. Gilbert, Assistant County Prosecutor, Franklin County, for Appellant State of Ohio

Samuel C. Peterson, Deputy Solicitor, for Amicus Ohio Attorney General, in support of the State of Ohio

Timothy E. Pierce, Assistant Public Defender, Franklin County, for Appellee Joshua Polk

State’s Argument

The prosecutor shared his time with amicus, the Attorney General’s Office.

Prosecutor’s Argument

Public schools rely on reasonable search policies to further their special need to maintain safety and order in the schools. Teachers can’t teach and students can’t learn if the premises aren’t safe. A search that complies with such a policy is reasonable under the Fourth Amendment regardless of the subjective motives of the individual performing the search, and regardless of whether there is any individualized suspicion of wrongdoing.

Students don’t abandon all expectations of privacy in their book bags when they are at school. But their expectation of privacy is diminished there, and doubly so with property that is abandoned or left unattended. When a bag is left unattended, it is perfectly reasonable to expect the finder to look inside it.

Whetstone High School has a policy of searching any unattended bag, both to determine its ownership and to make sure there was nothing dangerous inside. School security coordinator Lindsey, who is not a police officer, followed this policy in this situation. Opening the bag and doing that first cursory search and seeing Polk’s names on some papers didn’t satisfy the school’s policy of ensuring there is nothing dangerous in the bag. So after that first cursory search, Lindsey took the bag to the principal’s office and dumped out its contents, which was when the bullets were discovered.  That more thorough search was in accordance with the policy of ensuring student safety.  Lindsey’s motives for doing that second search are irrelevant.

Once the bullets were discovered, school officials then had reasonable suspicion to believe that Polk was carrying a firearm. At that point, they did want a police officer involved, so at that point the school resource officer became involved. The principal, Mr. Lindsey and the school resource officer found Polk, detained him, and searched a second bag he was carrying which is when they find the gun.

The lower courts never addressed the constitutionality of the second search—they stopped at the first search. They said Lindsey’s emptying of the bag was unconstitutional, and therefore what was discovered in the second search was fruit of the poisonous tree.

Even if the court finds any of the searches unreasonable, the remedy is not to exclude the evidence. The exclusionary rule exists only to deter police misconduct. School employees are not law enforcement personnel. They have no stake in the outcome of criminal trials.

Attorney General’s Argument

Every Fourth Amendment analysis must begin with the determination of whether there was a reasonable expectation of privacy in the items that were searched. When an item like a backpack is left unattended in public, no matter where, there is no expectation of privacy. The owner would expect someone to come along and look inside it. It does not matter whether that property is abandoned, lost, or unattended—there are no magic words here. The point is there is no expectation of privacy in the backpack. So, the search was proper, as was the discovery of the bullets. Just because a search is performed in two stages does not make it improper under the Fourth Amendment.

Polk’s Argument

Even the initial search in this case was not done pursuant to any school protocol. What the lower courts actually held was that the first search was done pursuant to a lost or mislaid property theory. It was more than just a quick search to determine ownership of the bag. The initial search was done to satisfy identification and risk assessment, and it did so. Polk did not lose all expectation of privacy when Lindsey came upon the bag. A temporary loss of the expectation of privacy does not mean a permanent loss of the expectation of privacy. In this case the trial court found the bag was not a safety threat, and that finding is supported by competent credible evidence.

As for the remedy, the exclusionary rule has been applied to non-police government actors, and should be applied in this case. Mr. Lindsey is best characterized as quasi-law enforcement. He’s not a teacher—he is there to perform searches, to look into all kinds of the students’ personal belongings.

What Was On Their Minds

Expectation of Privacy

Is there a difference in the expectation of privacy between a book bag in a locker or at one’s side, and one that has been abandoned, asked Justice O’Neill?

Lost versus Abandoned Property

Did the state argue that the bag was abandoned when the student left it on the bus, asked Justice French?

Clearly the bag wasn’t abandoned for property law purposes, commented Justice DeWine. But isn’t it reasonable to assume that if a person leaves something on a school bus, someone is going to open up that something and look inside? Would there be any expectation of privacy if it was a cellphone that was lost?

Is there any expectation of privacy in luggage lost at an airport, asked Justice O’Donnell?

The Searches

The bag was not emptied in the first search was it, asked Justice O’Neill? Wasn’t it just opened to determine ownership? Is there any violation there? Once that is determined, what is the basis for doing a more thorough search? Doesn’t it seem pretextual when someone opens a bag, determines its ownership, and then much later decides to reopen it to see if there is anything dangerous in it? During the later search, wasn’t Polk put into a hold?

When the gun was found, was it loaded, asked Justice O’Donnell? The results of which search or searches were suppressed by the court of appeals? Was the discovery of the bullets suppressed? Was the gun suppressed as fruit of the poisonous tree?

Where did the court of appeals go off the rails, asked Justice French? Don’t the searches have to be examined objectively, not based on what was in Mr. Lindsey’s mind?

Where one search done to ensure student safety led to another search, is there a difference, asked Chief Justice O’Connor? The first search was proper, the discovery of the bullets was proper, which gave reasonable suspicion to go find Polk and search another backpack?

The Fourth Amendment protects a privacy interest, commented Justice DeWine. If there is no privacy interest in the bag, then the inquiry is over, and the Fourth Amendment doesn’t protect it. But if Polk did not loose any expectation of privacy, how could the school have lawfully dumped the bag?

School Policy

Was the bag searched in accordance with school policy, asked Justice O’Donnell? Is there any restriction on a school principal or disciplinarian searching student backpacks?

Isn’t a school policy that searching or avoiding circumstances that would cause harm to the students reasonable and necessary, asked Chief Justice O’Connor? Was the initial touching and opening of the bag by Mr. Lindsey sufficient to accomplish that? Was just knowing that the bag belonged to Joshua Polk enough?

Lindsey’s Role

Was he the functional equivalent of a school resource officer, asked Justice DeWine?

Is it proper to characterize him as a law enforcement officer, asked Justice O’Donnell?

Is there anything in the record about his law enforcement qualifications, asked Justice O’Neill? (answer: no)

The Importance of School Safety

In a key question of the day, Chief Justice O’Connor asked how risk assessment was satisfied just by opening the bag and finding a piece of paper with the student’s name on it, and nothing more. Without delving into the bottom of the bag or any of its side pouches, how does that satisfy the responsibility of school safety? Justice French asked a very similar question.

Mustn’t the search be examined through the lens of school safety, asked Justice French? Don’t we want school officials to go further and really investigate what is in that bag regardless of whether it has a student’s name on it? Don’t we want to know whether there is a bomb in that bag? Isn’t that the practical reality that we are faced with?

The Exclusionary Rule

Does the exclusionary rule apply to non-law enforcement personnel, asked Justice O’Donnell? Has it ever been applied in the school context? Does it not deter school principals? If the court finds the search was improper, what remedy should be imposed?

One of the actors was a school resource officer, commented Justice DeWine. Isn’t a school resource officer an enforcement like position? Is there a difference between a bus driver and a school resource officer?

Is the exclusionary rule not available if there is a governmental violation of a child’s privacy rights, asked Justice O’Neill, noting that the school is the government. Is an illegal search of a student that produces wrongdoing that is turned over to the police not ever subject to the exclusionary rule?

Chief Justice O’Connor commented that teachers aren’t agents of the police, and that issue had been settled in Ohio v. Clark.

How it Looks from the Bleachers

To Professor Emerita Bettman

Not even close. Like an easy win for the state. I think the court will find that the school policy of searching any unattended bag to determine ownership and to make sure there was nothing dangerous inside is perfectly reasonable. Following that, the court will likely go on to find the first cursory search to determine ownership of the bag wasn’t enough to make sure the bag didn’t contain something harmful, so the second, more thorough search of the bag was proper, as was the later discovery of the gun. The prosecutor made this  confusing at times, because he was confusing about the number of searches that were performed. He said that the lower courts never addressed the constitutionality of the second search, only the first.  My reading of the appellate decision was there were three searches, the first cursory search, which was okayed, the second, in which the bullets were found which “was not justified at its inception,” and declared unconstitutional, and a third, in which the gun was found, which the appeals court found was fruit of the poisonous tree. But the prosecutor otherwise stayed on message, while Polk’s lawyer, by contrast, never seemed to find his footing or an effective rebuttal to the safety concerns of the justices.

I think the entire debate about whether the bag was lost or abandoned was much ado about nothing. Common sense suggests that Polk just forgot the bag, he didn’t abandon it. Abandoned was the computer in State v. Gould, 2012-Ohio-71. But in this case it makes not a whit of difference whether the bag was lost or abandoned. Polk had a diminished expectation of privacy in it, and it was reasonable to look inside it.

Because I think the court is going to uphold all three searches, I don’t think the court will even address the exclusionary rule in the school context, which is a hard question. I kept waiting for Chief Justice O’Connor to mention Ohio v. Clark, in which her viewpoint that teachers are not agents of law enforcement prevailed in the Sixth Amendment context in the U.S. Supreme Court decision, and she did indeed go there. But Mr. Lindsey was not a teacher, and his job does have quasi-law enforcement overtones.  That won’t matter because the court isn’t going to get there. Clark did also emphasize the overarching importance of safety in the school context. Justice French was all over that issue, closely followed by the Chief, and I think concern for safety will carry the day.  The only one who seemed at all sympathetic to Polk’s position was Justice O’Neill.

To Student Contributor David López-Kurtz

I remember being a high school student and taking the time to learn the difference in the rights afforded to me and those afforded to the rest of society. I found it disheartening then and I find it disheartening now the extent to which the rights of young people are trampled upon. I fear that this case will do nothing to diminish my frustration.

The moment that I knew that Polk’s ship was sunk was when Justice French posed the question: what if there is a bomb in the backpack found on an empty school bus? This fear, unfortunately reasonable in the today’s climate, pervaded the questioning of Polk’s counsel, Mr. Pierce. By the end of his time to speak, Mr. Pierce was stammering and seemed quite shaken by the bench’s peppering of questions.

Alternatively, Mr. Gilbert and Mr. Peterson both seemed cool and collected – the only real resistance coming from Justice O’Neill when he sought clarification as to whether the backpack was actually emptied in the course of the initial search. The justice pointed out that the bag was opened and identified as belonging to Polk and that it was only then that the bag was emptied and the bullets were discovered. The State contended that the emptying of the bag was the logical conclusion of compliance with the school’s policy – a policy meant to ensure that there is nothing dangerous in abandoned bags. Justice O’Neill seemed skeptical and asked whether that such reasoning is pretextual – that once the first search was done and it was determined who the bag belonged to there would need to be additional basis to then continue the search. The state contended that consideration as to the school’s subjective motivation for the additional search is legally irrelevant and that the search, taken as a whole, was proper and in keeping with the school’s policy. The Justice seemed unconvinced, and I join him in his skepticism.

At the end of the day I believe that Justice O’Neill will be in the minority. It is my expectation that the majority will side with the State and that, possibly, Justice O’Neill will dissent in favor of Polk and the rights of students. I believe that the Court will find that, to be a constitutional search, a public school employee’s search of an unattended backpack need only meet the standard of being reasonable, regardless of that employee’s intent. This will be a missed opportunity for the Court to stand up for the Fourth Amendment rights of young people.


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