State v. Polk (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Polk, Slip Opinion No. 2017-Ohio-2735.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2017-OHIO-2735THE STATE OF OHIO, APPELLANT, v. POLK, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Polk, Slip Opinion No. 2017-Ohio-2735.]
Fourth Amendment—Search and seizure—High school’s protocol requiring
searches of unattended book bags furthers compelling governmental
interest in protecting public-school students from physical harm—School
employees’ warrantless search of unattended book bag pursuant to protocol
was limited to furthering compelling governmental interest and was
reasonable—Court of appeals’ judgment affirming trial court’s grant of
suppression motion reversed and cause remanded.
(No. 2016-0271—Submitted March 1, 2017—Decided May 11, 2017.)
APPEAL from the Court of Appeals for Franklin County,
No. 14AP-787, 2016-Ohio-28.
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SUPREME COURT OF OHIO
KENNEDY, J.
I. INTRODUCTION
{¶ 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.
II. 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
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and safety concerns,” “what’s going on with America,” and studies indicating that
an “[u]nattended 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
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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 second search should have been whether the measures adopted [by the school]
were reasonably related to the objectives of the initial search (safety and
identification) and whether the search was not excessively intrusive.” Id. at ¶ 34.
{¶ 9} We accepted the state’s discretionary appeal, in which it asserts the
following three propositions of law:
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(1) A search is constitutional if it complies with a public
school’s reasonable search protocol. The subjective motive of the
public-school employee performing the search is irrelevant.
(2) The sole purpose of the federal exclusionary rule is to
deter police misconduct. As a result, the exclusionary rule does not
apply to searches by public-school employees.
(3) Suppression is proper only if the deterrence benefits of
suppression outweigh its substantial social costs.
See 145 Ohio St.3d 1470, 2016-Ohio-3028, 49 N.E.3d 1313. Because we conclude
that Whetstone’s search protocol is reasonable and that Lindsey and Principal
Barrett’s search complied with it, it is not necessary to address either the relevance
of the subjective motive raised in the state’s first proposition of law or the issues
raised in the state’s second and third propositions of law.
{¶ 10} The state argues that because a public school is a “special need”
setting in which students have a limited expectation of privacy and because public
schools have a compelling governmental interest in protecting student safety, the
search of the book bag that Polk left on the bus was reasonable because it complied
with Whetstone’s protocol for searching unattended book bags and because the
protocol is reasonable.
{¶ 11} In response, Polk notes that while a student in a public-school
setting has a diminished expectation of privacy in an unattended book bag, that
expectation of privacy is not nonexistent. Polk contends that while Lindsey
possessed authority to inspect Polk’s unattended bag to identify its owner and
to determine whether the contents were dangerous, Lindsey’s initial search of
the bag satisfied these objectives. Therefore, Polk argues, the “second, more-
intrusive investigatory search” conducted by Lindsey and Barrett violated the
Fourth Amendment.
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III. ANALYSIS
A. “Special Needs” Searches Not Based on Individualized Suspicion
{¶ 12} The Fourth Amendment to the United States Constitution provides
that “[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated.” “To be
reasonable under the Fourth Amendment, a search ordinarily must be based on
individualized suspicion of wrongdoing.” Chandler v. Miller, 520 U.S. 305, 313,
117 S.Ct. 1295, 137 L.Ed.2d 513 (1997), citing Vernonia School Dist. 47J v. Acton,
515 U.S. 646, 652-653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). “But
particularized exceptions to the main rule are sometimes warranted based on
‘special needs, beyond the normal need for law enforcement.’ ” Id., quoting
Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602, 619, 109 S.Ct. 1402, 103
L.Ed.2d 639 (1989). “When such ‘special needs’—concerns other than crime
detection—are alleged in justification of a Fourth Amendment intrusion, courts
must undertake a context-specific inquiry, examining closely the competing private
and public interests advanced by the parties.” Id. at 314. And “ ‘[i]n limited
circumstances, where the privacy interests implicated by the search are minimal,
and where an important governmental interest furthered by the intrusion would be
placed in jeopardy by a requirement of individualized suspicion, a search may be
reasonable despite the absence of such suspicion.’ ” Id., quoting Skinner at 624.
B. Permissibility of Warrantless Searches in Special-Needs Settings
{¶ 13} In T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720, the United
States Supreme Court first upheld a warrantless search in a special-needs setting.
Ferguson v. Charleston, 532 U.S. 67, 74, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001),
fn. 7. “[U]nder T.L.O., the Supreme Court has moved away from a rule-based
search and seizure jurisprudence toward a case-by-case method that will often turn
on a careful and meticulous analysis of the facts of the case.” State v. Lindsey, 881
N.W.2d 411, 425 (Iowa 2016).
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{¶ 14} In T.L.O., a teacher, upon discovering a student smoking (which was
against school rules), took the student to the principal’s office. When the student
denied that she had been smoking, the principal demanded her purse, opened it, and
discovered cigarettes and rolling papers associated with marijuana use. The
principal then searched the rest of the student’s purse, discovering marijuana, drug
paraphernalia, and other incriminating evidence.
{¶ 15} The state filed delinquency charges against the student, who moved
to suppress the evidence found in her purse. The juvenile court denied the motion
to suppress, finding that there was reasonable suspicion to search the purse for
cigarettes and that once the purse was open, the marijuana could be seized under
the plain-view doctrine.
{¶ 16} The juvenile was adjudicated delinquent. The court of appeals found
no violation of the Fourth Amendment but vacated the judgment of delinquency on
other grounds. The student appealed the Fourth Amendment ruling, and the New
Jersey Supreme Court held that the search was unreasonable and ordered that the
evidence be suppressed.
{¶ 17} The United States Supreme Court granted the state’s petition for
certiorari to determine whether the exclusionary rule applied, but that issue became
moot when the court determined that the Fourth Amendment applied to searches of
students conducted by school officials and that the search employed in T.L.O. was
reasonable. 469 U.S. at 332, 105 S.Ct. 733, 83 L.Ed.2d 720.
{¶ 18} Recognizing that “ ‘[t]he basic purpose of [the Fourth Amendment]
* * * is to safeguard the privacy and security of individuals against arbitrary
invasions by governmental officials,’ ” the court in T.L.O. held that “[i]n carrying
out searches and other disciplinary functions pursuant to [school disciplinary]
policies, school officials act as representatives of the State, not merely as surrogates
for the parents, and they cannot claim the parents’ immunity from the strictures of
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the Fourth Amendment.” Id. at 335-337, quoting Camara v. Mun. Court of San
Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
{¶ 19} In determining whether the principal’s warrantless search was
reasonable under the Fourth Amendment, the court stated that “[t]he determination
of the standard of reasonableness governing any specific class of searches requires
‘balancing the need to search against the invasion which the search entails.’ ” Id.
at 337, quoting Camara at 536-537. Accordingly, the court balanced a student’s
privacy interest in bringing certain types of property to school (e.g., school supplies,
keys, money, and personal-hygiene items as well as 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.” Id. at 339. The
court recognized that
“[e]vents calling for discipline are frequent occurrences and
sometimes require immediate, effective action.” * * *
Accordingly, we have recognized that maintaining security and
order in the schools requires a certain degree of flexibility in
school disciplinary procedures, and we have respected the value
of preserving the informality of the student-teacher relationship.
Id. at 339-340, quoting Goss v. Lopez, 419 U.S. 565, 580, 95 S.Ct. 729, 42 L.Ed.2d
725 (1975), and citing Goss at 582-523 and Ingraham v. Wright, 430 U.S. 651, 680-
682, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).
{¶ 20} The court explained that in striking a balance between students’
expectation of privacy and school officials’ “need to maintain an environment in
which learning can take place[,] [i]t is evident that the school setting requires some
easing of restrictions to which searches by public authorities are ordinarily
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subject”—namely, the requirements of probable cause and a search warrant.
T.L.O., 469 U.S. at 340, 105 S.Ct. 733, 83 L.Ed.2d 720. The court held that the
substantial need of teachers and administrators for freedom to
maintain order in the schools does not require strict adherence to the
requirement that searches be based on probable cause to believe that
the subject of the search has violated or is violating the law. Rather,
the legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search.
(Emphasis added.) Id. at 341.
{¶ 21} After T.L.O., the court next examined the issue of warrantless
searches in the school context in the form of random drug testing of student-athletes
and students who participate in extracurricular activities. See Acton, 515 U.S. 646,
115 S.Ct. 2386, 132 L.Ed.2d 564 (upholding random drug testing of student-
athlete); Bd. of Edn. of Indep. School Dist. No. 92 of Pottawatomie Cty. v. Earls,
536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) (upholding random drug
testing of students who participate in certain extracurricular activities). In both
cases, the court applied a balancing test appropriate for special-needs searches that
are not based on individualized suspicion. Under this balancing test, the court
weighs the importance of the government’s interest and the efficacy of the search
policy in furthering that interest against the nature of the privacy interest involved
and the intrusiveness of the search. Acton at 664-665; Earls at 830-834. In both
cases, the court upheld the random drug testing of certain students in light of the
government’s important interest in deterring drug use by schoolchildren and the
students’ diminished expectations of privacy.
{¶ 22} Indeed, “while children assuredly do not ‘shed their constitutional
rights * * * at the schoolhouse gate,’ * * * the nature of those rights is what is
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appropriate for children in school.” (First ellipsis sic.) Acton at 655-656, quoting
Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506, 89 S.Ct.
733, 21 L.Ed.2d 731 (1969). “A student’s privacy interest is limited in a public
school environment where the State is responsible for maintaining discipline,
health, and safety.” (Emphasis added.) Earls at 830-831. And “[s]ecuring order
in the school environment sometimes requires that students be subjected to greater
controls than those appropriate for adults.” Id. at 831, citing T.L.O. at 350 (Powell,
J., concurring).
C. Whetstone’s Search Protocol
{¶ 23} As previously noted, in T.L.O., the Supreme Court held that the
legality of the warrantless search of a student depends on the search’s
“reasonableness, under all the circumstances.” 469 U.S. at 341, 105 S.Ct. 733, 83
L.Ed.2d 720. The T.L.O. reasonableness standard requires that the court first ask
whether the search was “ ‘justified at its inception’ ”—that is, whether there were
“reasonable grounds for suspecting that the search [would] turn up evidence that
the student ha[d] violated or [was] violating either the law or the rules of the
school.” Id. at 341-342, quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868, 20 L.Ed.2d
889.
{¶ 24} The search in T.L.O. was based on individualized suspicion of
wrongdoing. Id. at 344-345. In this case, however, no violation was suspected at
the time of Lindsey and Principal Barrett’s search of Polk’s unattended bag. We
are asked to determine the reasonableness of Whetstone’s search protocol as
applied to this special-needs search. Accordingly, in analyzing Whetstone’s search
protocol, we find instructive the balancing test established by the Supreme Court in
Acton and Earls, which weighs the importance of the government’s interest and the
efficacy of the search policy in meeting that interest against the nature of the privacy
interest involved and the intrusiveness of the search.
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1. Importance of governmental interest and efficacy of searching unattended
book bags
{¶ 25} Schools have an obligation to keep their students safe. Earls, 536
U.S. at 830, 122 S.Ct. 2559, 153 L.Ed.2d 735. “Columbine, Virginia Tech
University, and now Sandy Hook underscore a fundamental policy change that has
taken place in our schools. We now pursue a new fundamental value in our schools:
security.” Demitchell, Locked Down & Armed: Security Responses to Violence in
Our Schools, 13 Conn.Pub.Int.L.J. 275, 281 (2014). The United States Department
of Homeland Security’s “See Something Say Something” website warns that
persons should be suspicious of “abandoned” items like luggage. See
http://www.nationalterroralert.com/suspicious-activity/ (accessed Apr. 17, 2017).
Because of “the perceived crisis concerning violence and drug use in the schools,
* * * school officials may be remiss if they do not find and seize objects which
might pose a threat to the well being of other students or school officials.”
(Emphasis sic.) Ferraraccio, Metal Detectors in the Public Schools: Fourth
Amendment Concerns, 28 J.L. & Educ. 209, 214 (1999).
{¶ 26} These warnings are reflective of school shootings and bomb threats
and, more generally, terror attacks that have occurred in this country. Lindsey
testified that Whetstone’s protocol requiring searches of unattended book bags to
identify their owners and to ensure that their contents are not dangerous was born
of these concerns. Therefore, Whetstone’s protocol 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. See generally MacWade v. Kelly, 460 F.3d 260 (2d Cir.2006)
(holding that random warrantless searches of subway riders’ closed containers
supported deterrence of terrorism and were reasonable under the Fourth
Amendment). And a complete search of unattended bags is effective in ensuring
that they do not contain dangerous contents. See Earls at 837-838; Acton, 515 U.S.
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at 663-664, 115 S.Ct. 2386, 132 L.Ed.2d 564. Anything less than a complete search
may miss dangerous items, as we explain later in this opinion.
2. Students’ expectation of privacy in unattended book bags
{¶ 27} The Fourth Amendment protects persons from unreasonable
searches only to the extent that they have a reasonable expectation of privacy in the
property at issue. Athens v. Wolf, 38 Ohio St.2d 237, 240, 313 N.E.2d 405 (1974).
“The [Fourth] Amendment does not protect the merely subjective expectation of
privacy, but only those ‘expectation[s] that society is prepared to recognize as
“reasonable.” ’ ” Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80
L.Ed.2d 214 (1984), quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507,
19 L.Ed.2d 576 (1967). A person forfeits his reasonable expectation of privacy in
his property when he abandons it. State v. Gould, 131 Ohio St.3d 179, 2012-Ohio-
71, 963 N.E.2d 136, ¶ 30. In the context of the Fourth Amendment, property is
abandoned if there is evidence that ownership of it has been relinquished. Id.{¶ 28} Whetstone’s search protocol requires school officials to search
unattended book bags. The dictionary definition of “unattended” is “not watched
with care, attentiveness, or accuracy.” Webster’s Third New International
Dictionary 2482 (2002). Property left unattended in a public place is usually
considered abandoned for purposes of the Fourth Amendment. See, e.g., United
States v. Thomas, 864 F.2d 843, 846-847 (D.C.Cir.1989) (defendant had no
reasonable expectation of privacy in gym bag he left on floor of public hallway in
apartment building).
{¶ 29} Unlike in Thomas, the bag in this case was not left in a public place;
it was left on an empty school bus to which the general public had no access. Polk’s
book bag was not abandoned in the sense that he had relinquished ownership of it.
However, 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. See
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State v. Flynn, 360 N.W.2d 762, 765 (Iowa 1985) (“the place where seized property
is located may be so exposed as to negate any reasonable expectation of privacy”),
citing State v. Kramer, 231 N.W.2d 874, 879 (Iowa 1975); People v. Shepherd, 23
Cal.App.4th 825, 828-829, 28 Cal.Rptr.2d 458 (1994) (“an important consideration
in evaluating a privacy interest is whether a person has taken normal precautions to
maintain his or her privacy”).
{¶ 30} The definition of “unattended” is similar to the definition of “lost,”
which is defined as “gone out of one’s possession or control; mislaid.” Webster’s
Third New International Dictionary at 1338. Therefore, we also look to case law
addressing lost property to assist our analysis. “Property is lost through
inadvertence, not intent.” State v. Ching, 67 Haw. 107, 110, 678 P.2d 1088 (1984).
Consequently, a person retains a reasonable expectation of privacy in a lost item,
“diminished to the extent that the finder may examine the contents of that item as
necessary to determine the rightful owner.” State v. Hamilton, 67 P.3d 871, ¶ 26
(Mont.2003); accord Ching at 110; State v. Kealey, 80 Wash.App. 162, 173, 907
P.2d 319 (1995).
{¶ 31} One’s expectation of privacy in a closed container is further
diminished to the extent that there is a need to ensure that its contents are not
dangerous to the public. See Knight v. Commonwealth, 61 Va.App. 297, 306, 734
S.E.2d 716 (2012); accord Ching at 112. Although the above cases involved
property found by law-enforcement officials, the rationale justifying the
warrantless investigatory search of a closed container applies to school officials
who are responsible for the safety of students.
{¶ 32} 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
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owners and to ensure that their contents are not dangerous is reasonable under the
Fourth Amendment.
3. Intrusiveness of search of Polk’s unattended bag
{¶ 33} It is undisputed that Lindsey conducted a cursory inspection of
Polk’s unattended book bag that yielded the name of its owner, then shortly
thereafter emptied the bag. The trial court found that “it was reasonable for Officer
Lindsey to conduct his initial search of the unattended book bag for not only safety
and security purposes, but also to identify the book bag’s owner. Having done so,
his original purpose for the search was fulfilled.” (Emphasis added.) The court
then held, however, that Lindsey and Principal Barrett’s subsequent emptying of
the bag was unreasonable because it was a new search motivated solely by the
rumor that Polk possibly was a gang member.
{¶ 34} The court of appeals deferred to the trial court’s finding that
Lindsey’s cursory search of the unattended bag satisfied the purposes of identifying
its owner and ensuring that its contents were not dangerous. We conclude, based
on this record, that that finding did not warrant the appellate court’s deference.
{¶ 35} Appellate review of a ruling on a motion to suppress presents a
mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, 797 N.E.2d 71, ¶ 8.
“An appellate court must accept the trial court’s findings of fact if
they are supported by competent, credible evidence. * * * Accepting
these facts as true, the appellate court must then independently
determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard.”
State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 7,
quoting Burnside at ¶ 8.
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{¶ 36} The trial court held that Lindsey was justified in searching the
unattended bag to identify its owner and to ensure that its contents were not
dangerous, but it did not explain why merely opening and peering into a book bag
full of items would be sufficient to ensure that none of its contents were dangerous.
A cursory inspection might easily fail to detect the presence of small but dangerous
items. See Illinois v. Lafayette, 462 U.S. 640, 646, 103 S.Ct. 2605, 77 L.Ed.2d 65(1983) (“Dangerous instrumentalities—such as razor blades, bombs, or weapons—
can be concealed in innocent-looking articles taken from the arrestee’s
possession”). 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.”
http://www.cnn.com/SPECIALS/2000/columbine.cd/Pages/BOMBS_TEXT.htm
(accessed Apr. 17, 2017); see also
https://www.youtube.com/watch?v=fYc8ci9z1nY (accessed Apr. 17, 2017)
(showing a cricket-bomb explosion). 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. See
People v. Getman, 188 Misc.2d 809, 817, 729 N.Y.S.2d 858 (2001) (noting that
cricket bombs fit in the pocket of a jacket). 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.
{¶ 37} Moreover, a reasonable delay in completing the execution of a
search does not change the fact that a defendant is “no more imposed upon than he
could have been at the time” that the reasons justifying the search first arose. United
States v. Edwards, 415 U.S. 800, 805, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). And
a warrantless search is not unreasonable merely because officials bring the item to
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another location before searching it. United States v. Johns, 469 U.S. 478, 486, 105
S.Ct. 881, 83 L.Ed.2d 890 (1985).
{¶ 38} Lindsey testified that he only peered into Polk’s unattended bag
when it first came into his possession and that he could see papers, notebooks, and
a binder. That cursory review provided him with the name of the bag’s owner, but
it did not enable him to determine that the contents were not dangerous. That
determination could not be made—and execution of Whetstone’s reasonable
protocol for searching unattended book bags could not be completed—until the bag
was emptied.
IV. CONCLUSION
{¶ 39} Whetstone’s protocol requiring searches of unattended book bags
furthers the compelling governmental interest in protecting public-school students
from physical harm. 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. Accordingly,
we reverse the judgment of the court of appeals and remand the cause to the trial
court for further proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and O’DONNELL, FRENCH, O’NEILL, FISCHER, and
DEWINE, JJ., concur.
_________________
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
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January Term, 2017
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.
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