Ohio Supreme Court Upholds School Search of Unattended Student Backpack

By Mark Walsh — May 13, 2017 2 min read
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Ohio’s highest court has upheld a warrantless school search of a high school student’s unattended book bag, ruling that such searches are justified by schools’ obligation to keep students safe in the era of the Columbine and Sandy Hook campus attacks.

The Ohio Supreme Court held unanimously that the search by a school security officer of a backpack left on a school bus, which turned up bullets, was not an unreasonable search under the First Amendment.

The book bag belonging to Joshua Polk, a student at Whetstone High school in Columbus, Ohio, was first given a cursory search by security officer Robert Lindsey to determine who owned it and ensure that it was not dangerous. Lindsey said in court proceedings that he conducted dozens of such searches daily pursuant to school policy.

However, recalling a rumor that the student was involved with a gang, Lindsey took the bag to the principal’s office, where he conducted a more thorough search that revealed the bullets. A police officer joined Lindsey in finding and searching Polk, and that search turned up a handgun in another bag that the student had with him.

The student was charged with crimes related to gun possession at a school. His lawyers challenged the searches of both his unattended bag and the bag he had with him under the Fourth Amendment. The initial search of the unattended bag was permissible, they said, but the more thorough search based on the rumor of Polk’s gang affiliation was unjustified.

They also argued that regardless of the legality of the search of the bag in Polk’s possession that had the handgun, the discovery of the gun was the fruit of the unconstitutional second search of the unattended bag.

Two lower courts agreed with Polk. But in its May 11 decision in Ohio v. Polk, the state supreme court analyzed the second search of the unattended bag in light of the U.S. Supreme Court’s three main student search decisions—New Jersey v. T.L.O. (1985), Vernonia School District 47J v. Acton (1995), and Board of Education of Independent School District No. 92 v. Earls (2002).

The Ohio court noted that schools have faced deadly shootings such as at Columbine High School in Colorado and Sandy Hook Elementary School in Connecticut, and that the entire nation has been more suspicious of unattended luggage and bags in the age of terrorism.

Whetstone High’s search protocol for unattended backpacks and bags “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.”

The state high court rejected the lower court’s conclusions that the high school’s policy was satisfied by the initial, cursory search of Polk’s unattended book bag.

“A cursory inspection might easily fail to detect the presence of small but dangerous items,” the high court said.

“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,” the opinion says. “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.”

The court sent Polk’s case back to a trial court for further proceedings.

A version of this news article first appeared in The School Law Blog.