Submitted March 1, 2017
from the Court of Appeals for Franklin County, No. 14AP-787,
O'Brien, Franklin County Prosecuting Attorney, and Seth
L. Gilbert, Assistant Prosecuting Attorney, for appellant.
R. Venters, Franklin County Public Defender, and Timothy E.
Pierce and George M. Schumann, Assistant Public Defenders,
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.
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.
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.
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.
FACTS AND PROCEDURAL HISTORY
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 ¶ 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 ...