Ohio High Court OKs Warrantless Backpack Search

COLUMBUS, Ohio (CN) – The constitutional rights of a student who left his backpack on a bus were not violated when school officials searched the bag, discovered bullets and then searched a second bag and found a gun, the Ohio Supreme Court ruled Thursday.

Joshua Polk – a student at Columbus’s Whetstone High School – was charged with one count of possession of a deadly weapon in 2013 when the second search turned up a gun.

The first of Polk’s book bags was discovered by school security officer Robert Lindsey on a school bus on the morning of Feb. 5, 2013. Lindsey, who is not a police officer, took the bag to the principal’s office after he opened it and saw Polk’s name on a paper.

Lindsey previously testified that he had heard a rumor that Polk was a gang member, which prompted him to take the bag directly to the principal.

The principal and Lindsey opened the bag and emptied it, at which point they discovered bullets and notified a police officer.

The trio stopped Polk in a school hallway and, according to court documents, “the police officer then incapacitated Polk by placing him in a hold.”

Lindsey searched a bag being carried by Polk and discovered the handgun.

Polk’s motion to suppress the evidence turned up by both searches was initially granted by the Franklin County Court of Common Pleas and then upheld in a 2-1 decision by the Franklin County Appeals Court, but the state’s highest court decided unanimously Thursday to overturn the decision.

Justice Sharon L. Kennedy, who authored the Ohio Supreme Court’s opinion, wrote that the school’s policy of searching unattended book bags “furthers the compelling governmental interest in protecting public-school students from physical harm.”

Kennedy and the other justices agreed with the state, which argued that public schools are a “special needs” setting that allow for warrantless searches.

Although she admitted that Polk’s bag “was not left in a public place,” Justice Kennedy said that “leaving a book bag on an empty school bus does diminish the owner’s expectation of privacy because school buses transport children to and from school. Children are inquisitive and might be inclined to open an unattended book bag.”

Polk argued that the initial search by Lindsey – during which he discovered a paper with Polk’s name on it – satisfied the school’s need to ensure the bag posed no threat to its students, but the justices disagreed.

“A cursory inspection might easily fail to detect the presence of small but dangerous items. Eric Harris and Dylan Klebold, the two students responsible for the Columbine High School shootings, fashioned explosive devices out of CO2 cartridges called ‘cricket bombs.’ Cricket bombs are so small that they are likely to evade a cursory search of a book bag, as did the bullets in this case,” Kennedy wrote. “Consequently, we conclude that there is not competent, credible evidence to support the trial court’s finding that Lindsey’s act of opening Polk’s unattended bag enough to observe papers, notebooks, and a binder was sufficient to ensure that the bag contained no dangerous items.”

The justices concluded that “as executed here, the search of Polk’s unattended book bag was limited to fulfilling the purposes of Whetstone’s search protocol – to identify the bag’s owner and to ensure that its contents were not dangerous.”

The case will be remanded to the Franklin County Common Pleas Court.