If you have pushed your school’s search protocol to the bottom of the to-do list, make sure you move it to the top, as now is the time to review this protocol as it relates to unattended bags.
Recognizing “what’s going on in America” and referencing “Columbine, Virginia Tech University, and now Sandy Hook,” the Ohio Supreme Court acknowledged there has been a “fundamental policy change that has taken place in our schools.” In a recent decision, the Ohio Supreme Court held that a school employee’s warrantless search of an unattended book bag, pursuant to the school’s protocol, was reasonable and therefore did not run afoul of the Fourth Amendment. State v. Polk, 2017-Ohio-2735.
Columbus Whetstone High School has an unwritten protocol of searching “unattended” book bags to identify the owners and ensure their contents were not dangerous. In February 2013, a bus driver found a book bag during his post-route walk-thru and gave it to the safety and security resource coordinator. The safety coordinator opened the bag enough to discern papers, notebooks, and a binder. One of the papers had Joshua Polk’s name on it. Recalling a rumor that Polk was possibly in a gang, the safety coordinator took the bag to the principal’s office and emptied the contents of the bag. Upon emptying the contents, they discovered bullets in the book bag and notified the police. The principal, safety coordinator, and the police officer determined Polk’s location in the school building and went to find him. Another search of the backpack Polk was carrying found a handgun in the side compartment of that bag.
With a motion to suppress, Polk claimed the second and more intrusive search of the book bag that he left on the bus was unreasonable because it was “conducted solely based upon the identity and reputation of the owner.” Polk also claimed the handgun found in the third search was inadmissible because it was fruit of the poisonous tree. The Tenth District Court of Appeals affirmed the trial court’s decision to grant Polk’s motion to suppress.
The Ohio Supreme Court closely examined the school’s protocol of searching unattended bags to identify their owners AND to ensure their contents are not dangerous. Citing Homeland Security’s “See Something, Say Something,” and the emerging use of “cricket bombs,” the Court determined the school had a compelling governmental interest in public school safety by helping to ensure the contents of the unattended bags are not dangerous and the students remain safe from physical harm. Consequently, the second “more intrusive” search was constitutional because the first cursory search (that identified the owner) was not sufficient to ensure that the bag contained no dangerous items.