The constitutional rights of a student who had bullets in his book bag were not violated when a high school used this discovery to search another of the student’s bags and found a handgun, the Ohio Supreme Court ruled today.

The unanimous decision by the Supreme Court reversed a decision by the Tenth District Court of Appeals in Columbus.

The appeals panel had agreed with a trial court that the gun was inadmissible as evidence because the search violated the U.S. Constitution’s Fourth Amendment guarantees against unlawful search and seizure.

But the Supreme Court, in a decision by Justice Sharon L. Kennedy, wrote that schools have a compelling interest in protecting students from harm, making it reasonable for the school to conduct a warrantless search of property, like a book bag, to identify the owner and ensure the contents were not dangerous.

Justice Kennedy wrote that students have a diminished expectation of privacy because of schools’ obligation to keep them safe and this requires an easing of the normal limitations on searches, such as the need for probable cause. A student’s privacy is further diminished when he or she leaves a personal item unattended at school, making a warrantless search reasonable.

One Search Led to Another
The case involved Joshua Polk, a student at Whetstone High School in Columbus. Polk was indicted on one count of illegal conveyance or possession of a deadly weapon in a school safety zone. Polk sought to suppress from the trial the handgun found in a bag he was carrying when he was stopped in the school by the principal, the school safety and security resource coordinator, and a Columbus police officer.

Polk was stopped and his bag was searched because, earlier, a school bus driver found an unattended bag on the bus and gave it to school safety coordinator Robert Lindsey. Lindsey opened it far enough to see papers, notebooks, and a binder. He saw Polk’s name on an item and recalled hearing that Polk was possibly in a gang. He took the bag to the principal’s office, where he and the principal emptied the bag and found bullets. Lindsey, who is not a police officer, had not noticed the bullets when he initially opened the bag.

The principal and Lindsey located a police officer assigned to the school, and the three of them found Polk walking in a hallway. They moved him to another hallway, away from other students, and the police officer placed Polk in a hold and instructed Lindsey to search the bag Polk was carrying. Lindsey discovered a gun in the bag, and Polk was charged with the weapons violation.

Polk filed a motion to suppress the bullets and the gun as evidence, citing the Fourth Amendment. The trial judge ruled that the initial search of the unattended bag was reasonable because the aim was to identify the owner and ensure that the contents were not dangerous.

However, the trial judge concluded that the second, follow-up search of the first bag in the principal’s office was unreasonable and was conducted “solely based on the identity and reputation of the owner.” Suspecting Polk was affiliated with a gang was not enough to conduct a search without a warrant because he was not suspected of violating a school rule or a law, the trial court ruled.

Since the search in the principal’s office led to the search of the second bag, the discovery of the gun also was inadmissible, the trial court held. In a 2-1 decision, the Tenth District affirmed the trial court’s ruling, and the Franklin County Prosecuting Attorney’s Office appealed to the Ohio Supreme Court.

Schools Increase Inspections for Safety Reasons
At a 2014 trial court hearing, Lindsey testified that Whetstone High had an unwritten protocol to search all unattended book bags to identify owners and ensure the contents were not dangerous. The protocol was based on “current events and safety concerns,” he said, and estimated that he searched 15 to 20 bags a day because either a bag was suspected of containing contraband or it was left unattended.

Prosecutors described the school’s protocol as a “special needs search.” The Supreme Court explained that the Fourth Amendment considers a search reasonable if there is “individualized suspicion of wrongdoing.” However, a special need arises in cases where a person’s privacy interest is minimal and an important governmental interest would be jeopardized without the ability to search. A special needs search is reasonable without any suspicion of a crime.

The Court recognized that the U.S. Supreme Court in its 1985 New Jersey v. T.L.O. decision upheld a warrantless search in a case where a teacher suspected a student of smoking because schools presented a special needs setting. At the principal’s office, the principal took the student’s purse, opened it, and discovered cigarettes, marijuana, and other drug paraphernalia. The state charged the student with delinquency and she moved to have the evidence suppressed, claiming the search violated her rights.

The U.S. Supreme Court allowed the search, ruling the principal needed to balance a student’s right to privacy in certain property, which could contain highly personal items like photos and diaries, against the “substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds.”

The Ohio Supreme Court’s opinion also recognized the U.S. Supreme Court in Vernonia School Dist. 47J v. Acton and in Bd. of Edn. of Indep. School Dist. No. 92 of Pottawatomie Cty. v. Earls extended the use of special needs searches to the random drug testing of students in sports and extra-curricular activities. Unlike its holding in T.L.O., the U.S. Supreme Court’s consideration of student drug testing in Acton and Earls was not based on individualized suspicion of drug use. Instead, the court used a test that balanced the schools’ interest in drug testing students against the intrusion of the students’ privacy in doing so.

Justice Kennedy explained that in both cases the U.S. Supreme Court held that the diminished expectation of student privacy for being a student and being involved in voluntary activities gave way to the school’s compelling interest in deterring drug use by school children so the drug tests are appropriate special needs searches.

Court Uses Balancing Test to Evaluate Whetstone’s Search Protocol
The Ohio Supreme Court found that unlike the student smoker accused of violating a school rule in T.L.O., Lindsey and the Columbus Whetstone principal began searching Polk’s bag without suspecting him of any rule violation or crime. While the T.L.O. opinion would not directly support Whetstone’s procedure, the Court wrote that the logic of the balancing test used in Acton and Earls was instructive in determining if the school’s search of the unattended book bag was constitutional.

The opinion recognized that the school shootings at Columbine High School in Colorado, Sandy Hook Elementary School in Connecticut, Virginia Tech University, and elsewhere have made school security a fundamental value, and it notes the U.S. Department of Homeland Security’s “See Something, Say Something” campaign warns people to be suspicious of unattended luggage.

Whetstone’s search protocol was born from these concerns, the opinion stated, and 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.”

“And a complete search of unattended bags is effective in ensuring that they do not contain dangerous contents,” the Court wrote.

Polk Had Reduced Expectation of Privacy
Some courts have held that unattended property left in a public place is considered abandoned and the owner has no reasonable expectation of privacy, which means that the protections of the Fourth Amendment do not apply, the Court explained. However, Polk left his bag on a school bus, which is not a place of public access, and should not be considered abandoned. However, the owner of a book bag left on a school bus does have a reduced expectation of privacy especially since other children get on and off the bus during the day and might be inclined to open an unattended bag, the opinion noted.

The Court stated that Polk’s bag should be considered lost and that the owner’s expectation of privacy should be considered diminished to the extent that the finder might examine it to locate the owner. Prior court rulings have allowed law enforcement officials to examine closed containers to search them without a warrant to ensure they are not dangerous, and the Court concluded that school officials who are responsible for the safety of students are justified in searching closed containers.

“In light of Whetstone’s compelling interest in ensuring that unattended book bags do not contain dangerous items and of Polk’s greatly diminished expectation of privacy in his unattended bag, we conclude that Whetstone’s protocol requiring searches of unattended book bags to identify their owners and to ensure that their contents are not dangerous is reasonable under the Fourth Amendment,” the opinion stated.

Ensuring Safety Required Emptying Contents of the Bag
The opinion noted the trial and appellate courts found Lindsey’s initial cursory search of Polk’s bag to determine its owner and to ensure that its contents were not dangerous was reasonable, but wrongly concluded that Lindsey accomplished this purpose after his initial cursory search. The trial court characterized the search in the principal’s office as a “new” search and found it unreasonable because it was motivated by the rumor that Polk might be in a gang.

The trial court did not explain how Lindsey’s initial opening of the bag and peering into it led the court to conclude the contents were not dangerous. The Supreme Court’s opinion noted that such a cursory inspection might fail to detect small, but dangerous, items, and the trial court did not provide “competent, credible evidence” that the bag contained no dangerous items. The Court reasoned that it was not until the contents of the unattended bag were emptied that the trial court could conclude that it was safe.

The Ohio Supreme Court characterized the search at the office as a continuation of the initial search and noted that searches do not require a warrant simply because officials bring an item to another location before searching. It concluded that Lindsey could not complete Whetstone’s protocol for searching unattended bags until the bag was emptied.

“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 opinion concluded. Therefore, Lindsey’s search of Polk’s unattended bag was reasonable and did not violate the Fourth Amendment.

The Court remanded the case to the trial court for further proceedings.

2016-0271. State v. Polk, Slip Opinion No. 2017-Ohio-2735.

View oral argument video of this case.

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