COLUMBUS, Ohio (CN) – Attorneys for Ohio fought in the state’s highest court Wednesday to overturn a trial court’s ruling suppressing evidence of a gun discovered during the search of a high school student’s backpack.
Joshua Polk was charged with one count of possession of a deadly weapon in 2013 after a search of his backpack turned up a gun.
The search was conducted by Whetstone High School safety and security officer Robert Lindsey, who discovered bullets in Polk’s backpack after it was left on a school bus.
An initial search of the backpack turned up an item with Polk’s name on it, but Lindsey decided to take the bag to the principal’s office instead of returning it to Polk, at least partially based on rumors that Polk was in a gang.
The backpack was emptied in the principal’s office, which led to the discovery of several bullets and prompted school officials to find Polk and pull him out of class.
Polk had another bag with him at the time, which was subsequently searched by Lindsey, who discovered the gun.
According to court documents, “under questioning by the trial judge, Lindsey provided varying answers on the Whetstone search protocol and whether he intended to completely empty the bag as part of his standard procedure, or if he did so only because he suspected Polk was involved in a gang.”
The trial judge granted Polk’s motion to suppress the gun in September 2014, and ruled that “Lindsey couldn’t empty the [first] bag without ‘reasonable grounds’ for suspecting the search would turn up evidence in violation of a school rule or law … [and] the second search was conducted solely on Polk’s reputation.”
The suppression of evidence was upheld last year by a divided panel of Ohio’s Tenth District Court of Appeals.
Arguing on behalf of the state in the Ohio Supreme Court on Wednesday morning, attorney Seth Gilbert said the searches were done according to a school policy.
“Whetstone High School has a policy to search all unattended bags,” he said. “Mr. Lindsey followed this policy and emptied the bag.”
Justice Judith L. French asked the attorney whether he argued the abandonment theory at the lower court level.
“We didn’t focus on it,” he replied. “We’re not saying students abandon all expectations of privacy when they bring bags into school … [but] the expectation of privacy is diminished when the bag is abandoned.”
Justice William O’Neill asked about the necessity of probable cause in the search that turned up the bullets, as the owner of the bag had already been identified.
“The school didn’t need probable cause because of its policy [to search unattended bags]. It has to determine if there is anything dangerous in the bag,” Gilbert replied.
Tim Pierce, representing Polk, criticized the state’s position and the school’s policy during his argument.
“This search was more detailed than a ‘quick look,’” the attorney said. “Mr. Lindsey was asked [at trial] what else was in the bag. ‘Papers, notebooks, one binder, stuff like that,’ [Lindsey said]. The [initial] search that was performed was sufficient to satisfy the risk assessment and to identify the owner.”
Justice French disagreed, and said the search did little to assess a potential risk.
“In this day,” she said, “a backpack on an empty bus is concerning. Everyone knows it can be a dangerous thing. Doesn’t that inform our decision?”
“Certainly,” Pierce replied. “And I understand the court’s concern; however, I would say that Lindsey’s search satisfied those two requirements. It is also important to note that the Court of Appeals said if Lindsey had dumped the bag to begin with, it would have been fine.”
Ohio countered Pierce’s argument, and claimed that a search conducted in two stages – like the one of the abandoned backpack – does not violate a citizen’s Fourth Amendment rights.
No timetable has been set for the Ohio Supreme Court’s decision.