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State v. Polk

Supreme Court of Ohio

May 11, 2017

The State of Ohio, Appellant,
Polk, Appellee.

          Submitted March 1, 2017

         Appeal from the Court of Appeals for Franklin County, No. 14AP-787, 2016-Ohio-28.

          Ron O'Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert, Assistant Prosecuting Attorney, for appellant.

          Yeura R. Venters, Franklin County Public Defender, and Timothy E. Pierce and George M. Schumann, Assistant Public Defenders, for appellee.

          Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, Samuel C. Peterson, Deputy Solicitor, and Katherine J. Bockbrader, Assistant Attorney General, urging reversal for amicus curiae Ohio Attorney General Michael DeWine.

          Bricker & Eckler, L.L.P., and Jennifer M. Flint, urging reversal for amici curiae Ohio School Boards Association, Buckeye Association of School Administrators, Ohio Association of School Business Officials, Ohio Association of Secondary School Administrators, Ohio Federation of Teachers, and Ohio Education Association.

          Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Assistant Public Defender, urging affirmance for amicus curiae Ohio Public Defender.

          Marsha L. Levick, urging affirmance for amici curiae Juvenile Law Center, Center of Juvenile Law and Policy, Center for Wrongful Convictions of Youth, Children's Law Center, Inc., Rutgers School of Law Children's Justice Clinic, Rutgers Criminal and Youth Justice Clinic, Education Law Center-PA, Professor Barry C. Feld, Juvenile Defenders Association of Pennsylvania, Juvenile Justice Initiative, National Center for Youth Law, National Juvenile Justice Network, Northeast Juvenile Defender Center, Roderick and Solange MacArthur Justice Center, and Youth Law Center.

          Law Office of Matthew C. Bangerter and Matthew C. Bangerter; and Russell S. Bensing, urging affirmance for amicus curiae Ohio Association of Criminal Defense Lawyers.

          Kimberly Payne Jordan, urging affirmance for amicus curiae Justice for Children Project, Moritz College of Law Clinical Programs, Ohio State University.

          KENNEDY, J.


         {¶ 1} In this discretionary appeal, we decide whether the Tenth District Court of Appeals erred in affirming the judgment of the Franklin County Court of Common Pleas granting a defense motion to suppress evidence seized during the warrantless search of an unattended book bag. The search was conducted by a school employee responsible for students' safety and security and the school's principal to determine who owned the bag and to ensure that its contents were not dangerous.

         {¶ 2} Based on the facts of this case, we hold that the school's protocol requiring searches of unattended book bags-to determine ownership and whether the contents are dangerous-furthers the compelling governmental interest in protecting public-school students from physical harm. We further hold that the school employees' search of the unattended book bag belonging to appellee, Whetstone High School student Joshua Polk, was limited to furthering that compelling governmental interest and was reasonable under the Fourth Amendment to the United States Constitution. Therefore, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings consistent with this opinion.


         {¶ 3} Robert Lindsey, who is not a police officer, is employed as a safety and security resource coordinator by the Columbus City School District. His job is to ensure that students are safe, and it requires him to undertake tasks such as running fire drills and carrying out security checks of school buildings, the students, and their lockers. At a hearing on Polk's suppression motion, Lindsey testified that Columbus's Whetstone High School has an unwritten protocol requiring searches of "unattended" book bags to identify their owners and to ensure that their contents are not dangerous. Lindsey testified that the protocol was based on "current events and safety concerns, " "what's going on with America, " and studies indicating that an "[unattended bag * * * is a priority." Lindsey estimated that he searches 15 to 20 bags a day, either because a bag is suspected to contain contraband or because it has been left unattended.

         {¶ 4} Lindsey testified that Whetstone bus drivers perform walk-throughs of the buses after their routes are complete to ensure that no student has remained on the bus. On February 5, 2013, while Lindsey was on duty at Whetstone, a bus driver found a book bag during his walk-through and gave it to Lindsey. Lindsey testified that it was a typical book bag carried by Whetstone students. He opened the bag enough to discern papers, notebooks, a binder, and "stuff like that." One of the papers had Polk's name on it. Recalling a rumor that Polk was possibly in a gang, Lindsey immediately took the bag to Whetstone's principal, a Mr. Barrett. Together they emptied Polk's bag of its contents-which, Lindsey testified, he would have done regardless of the rumor that Polk may have been in a gang because that was the protocol. Upon emptying the bag, Lindsey and Barrett discovered bullets, which Lindsey had not noticed when he initially opened the bag after receiving it from the bus driver. Barrett then notified a police officer.

         {¶ 5} Lindsey, Barrett, and the police officer determined Polk's location in the school and went to find him. When they found Polk walking in a crowded hallway, they moved him into another hallway away from other students. The police officer then incapacitated Polk by placing him in a hold and instructed Lindsey to search a book bag that Polk was carrying. Lindsey found a handgun in a side compartment of that bag.

         {¶ 6} The state charged Polk with one count of conveyance or possession of a deadly weapon or dangerous ordnance in a school-safety zone. Polk filed a motion to suppress the bullets and the handgun, arguing that the searches of both book bags were unreasonable under the Fourth Amendment and that regardless of the legality of the search of the bag that Polk was found carrying, the handgun should be excluded as fruit of the poisonous tree. The state filed a memorandum in opposition.

         {¶ 7} The trial court granted Polk's motion to suppress. The court first determined that Lindsey's initial search of the unattended bag-to identify its owner and to ensure that its contents were not dangerous-was reasonable. The court further determined, however, that the "second and more intrusive search" of the unattended bag, conducted by Lindsey and Principal Barrett, was unreasonable because it was "conducted solely based on the identity and reputation of the owner, " which did not constitute reasonable grounds for suspecting a violation of school rules or the law.

         {¶ 8} In a two-to-one decision, the court of appeals affirmed the trial court's judgment, essentially adopting the trial court's reasoning and adding that the trial court had correctly suppressed the handgun as fruit of the poisonous tree. 2016-Ohio-28, 57 N.E.3d 318, ¶ 12-19. The dissenting judge noted that “when considering the second search, the majority applied the test outlined in [New Jersey v. T.L.O.,469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)] for the initial search[, ]” i.e., whether Lindsay “ ‘had “reasonable grounds” for suspecting that the search would turn up evidence that [Polk] had violated or was violating either school rules or the law.' ” (Emphasis added.) 2016-Ohio-28, 57 N.E.3d 318, at ΒΆ 33 (Dorrian, P.J., concurring and dissenting), quoting the trial court's opinion. The dissenting judge went on to conclude that "the [trial] court's question regarding the ...

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