On May 11, 2017, the Supreme Court of Ohio handed down a merit decision in State v. Polk, Slip Opinion No. 2017-Ohio-2735. In a unanimous opinion written by Justice Kennedy, the court upheld the propriety of the searches of a book bag left by a high school student on a school bus. The case was argued March 1, 2017.
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. It is the unwritten policy of Whetstone High to search unattended book bags to identify their owners and to make sure there is nothing dangerous in them. 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 may have been in a gang, Lindsey took the bag to the principal’s office, where the two men dumped out the contents, and discovered several bullets which Lindsey had not seen initially. The principal then contacted a police officer assigned to the school. The three men found and detained Polk while Lindsey searched another bag that Polk was then carrying. Lindsey found a handgun in that bag. Polk was charged with a felony count of possessing a firearm in a school.
Motion to Suppress
Polk filed a motion to suppress the bullets and the gun, arguing that both searches were unreasonable under the Fourth Amendment, and that regardless of the propriety of the search of the bag Polk was found carrying, the gun should be excluded as fruit of the poisonous tree. The trial court granted the motion to suppress, finding the initial search of the unattended bag to determine its owner and to determine that the contents were not dangerous was reasonable, but that the second search in the principal’s office was not, because it was based solely on the identity and reputation of the owner.
In a split decision, the 10th District Court of Appeals upheld the granting of the motion to suppress, adding that the trial court had correctly also suppressed the gun as fruit of the poisonous tree. Dissenting as to the second search, Judge Dorrian would find that the proper question to ask about that search was whether the measures adopted by the school were reasonably related to the safety and identification objectives of the first search, and whether the search was not excessively intrusive.
Illinois v. Lafayette, 462 U.S. 640, 646 (1983) (a cursory inspection might easily fail to detect the presence of small but dangerous items, such as razor blades, bombs, or weapons justifying the search of an unattended bag to identify its owner and to ensure that its contents were not dangerous.)
United States v. Johns, 469 U.S. 478, 486 (1985) (a warrantless search is not unreasonable merely because officials bring the item to another location before searching it.)
New Jersey v. T.L.O., 469 U.S. 325 (1985) (the 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. Reasonableness is determined on a case-by-case basis and turns on a careful and meticulous analysis of the facts of the case.)
Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602, 619 (1989) (to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing, but particularized exceptions to the main rule are sometimes warranted based on special needs, beyond the normal need for law enforcement.)
Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652-653 (1995) (typically, to be reasonable under the Fourth Amendment, a search must be based on individualized suspicion of wrongdoing, but particularized exceptions to the main rule are sometimes warranted based on “special needs,” which are those needs beyond the normal need for law enforcement.)
Bd. of Edn. of Indep. School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822 (2002) (random drug testing of students who participate in certain extracurricular activities is justifiable when applying a balancing test that weighs the importance of the government’s interest and the efficacy of the search policy in furthering that interest against the nature of the privacy interest involved and the intrusiveness of the search.)
In this day and age, a public school policy of searching unattended bags furthers the compelling state interest in protecting students. The warrantless searches of this bag left on the bus were reasonable. The first search, which all the courts agreed was reasonable, was proper to identify its owner, but it didn’t satisfy the need to be sure there was nothing dangerous in it. Little hard to see things can do a lot of harm, and the second, more comprehensive search, which turned up bullets, was proper.
The search of this book bag was reasonable because it complied with Whetstone’s protocol for searching unattended book bags, and the protocol itself is reasonable. A public school is a “special need” setting in which students have limited expectations of privacy. Public schools have a compelling interest in protecting student safety. The court unequivocally agrees with this position.
Even if their interest in privacy is a diminished one, students do still have an expectation of privacy in their possessions. The first search fully satisfied the school’s need to identify the owner of the bag and to be sure the contents weren’t dangerous. The second search was a Fourth Amendment violation.
Usually, to comply with the Fourth Amendment, a search must be based on individualized suspicion of wrongdoing, probable cause, and a search warrant. But there are exceptions to that rule. One such exception is the special needs exception, meaning needs based on concerns other than the need for law enforcement.
T.L.O. and Progeny
The U.S. Supreme Court first upheld a warrantless search in a special-needs setting in 1985 in New Jersey v. T.L.O, which was also a school setting. The court upheld the search of the purse of a student who had denied she was smoking, which was against school rules. The principal who searched the purse found pot and other incriminating evidence.
In finding the search of the purse reasonable, the Court developed a balancing test appropriate for special-needs searches, balancing a student’s expectation of privacy and the interest of school officials in maintaining a proper learning environment. In such circumstances, a court is to weigh the importance of the state’s interest against the privacy interest involved and the intrusiveness of the search. Since T.L.O., the U.S. Supreme Court has upheld random drug testing of student-athletes and of students who participate in other extracurricular activities.
What is key here? Whether the search is reasonable under all the circumstances.
Whetstone’s Search Policy
First question under the reasonableness standard—was the search justified at the inception? Unlike the search in T.L.O, the one in this case was not based on individualized suspicion. No violation was suspected when the bag was searched by the school resource officer, and later, the principal. So, the Ohio high court uses the balancing test used in the student athlete and extra-curricular activities cases.
Government’s Interest and Efficacy of the Search in Meeting That Interest
Schools must keep their students safe. Whetstone’s search protocol emanates from that now national concern. So, the court’s opinion first finds that the school search protocol “supports the compelling governmental interest in public-school safety by helping to ensure that the contents of the bags are not dangerous and in turn that Whetstone’s students remain safe from physical harm.” This means a complete search.
Students’ Expectation of Privacy in Unattended Book Bags
Well, students do still have some, but it’s definitely diminished. The court clarifies that this bag was not abandoned property, in which it has previously held that an owner forfeits any expectation of privacy. Nor was it a bag left unattended in a public space, which is also considered abandoned for Fourth Amendment purposes. Polk’s bag was left on an empty school bus. In this context, which the court analogizes to lost property, a person retains some expectation of privacy, but it is diminished because it is to be expected that the finder will examine the contents of that item to determine its rightful owner. So, from there, the court concludes that in light of Whetstone’s compelling interest in making sure that unattended bags don’t contain dangerous stuff, and because Polk’s expectation of privacy in his unattended bag was greatly diminished, the school’s protocol requiring searches of unattended book bags to identify their owners and to make sure the contents aren’t dangerous is reasonable under the Fourth Amendment.
Intrusiveness of This Search
Remember, the trial court found the initial search was ok, but also found that first search met both identification and safety goals, and a majority of the appeals court agreed when it nixed the second search. Here, the Ohio high court parts company with those lower courts. It found that the lower courts’ findings that merely opening and looking into a book bag full of stuff was good enough to make sure it doesn’t contain anything dangerous was incorrect. That could not have been determined until all its contents were emptied out. And the fact that the second search occurred later, and in the principal’s office, doesn’t matter.
The first search was proper to identify the owner of the bag, but not good enough to make sure there was nothing dangerous in it. The second search in the principal’s office accomplished that purpose. The judgment of the court of appeals was reversed and the case sent back for further proceedings.
What Wasn’t Decided in the Case
Because of the findings about the proprietary of the searches, the court did not need to reach the issue of whether the exclusionary rule applies to searches by public school employees, the propriety of suppression in this context, or the relevance of the subjective motive of the employee performing the search (Robert Lindsey, in this case).
Here’s what I wrote after the argument:
“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.”
It was pretty much all over when Justice French made the comment, “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.”
Might the result have been different at an earlier time in our history? Hard to say, but not now.
I also wrote, “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.”
Finally, I accurately predicted that the court wouldn’t even mess with the really thorny question of the exclusionary rule in the school context. Since the court found the search reasonable, it did not need to, and therefore did not, reach that issue.