State v. Polk
| Decision Date | 07 January 2016 |
| Docket Number | No. 14AP–787.,14AP–787. |
| Citation | 57 N.E.3d 318 |
| Parties | STATE of Ohio, Plaintiff–Appellant, v. Joshua POLK, Defendant–Appellee. |
| Court | Ohio Court of Appeals |
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellant.
Yeura R. Venters, Public Defender, and Timothy E. Pierce, Columbus, for appellee.
, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals from a decision of the Franklin County Court of Common Pleas, rendered on September 29, 2014, which suppressed the evidence against defendant-appellee, Joshua Polk. We find that the trial court acted within its fact-finding discretion when it concluded that Polk's unattended bag was searched solely based on rumors that Polk was affiliated with a gang. Because that is a constitutionally insufficient basis for a search (even within a school where expectations of privacy are lessened) and because subsequent searches grew from the poisonous fruit of that search, we overrule the state's assignment of error and affirm the decision of the trial court.
{¶ 2} On May 22, 2013, an indictment issued for Polk. The indictment alleged that, on February 5, 2013, Polk had possessed a gun in a school. Polk filed a motion to suppress the gun on June 5, 2014. The state responded. On September 17, 2014, the trial court held an evidentiary hearing on the motion to suppress.
{¶ 3} A single witness testified at the hearing, a school security officer by the name of Robert Lindsey. Lindsey explained that he is not a police officer but that he is a safety and security officer employed by Columbus Public Schools and works at Whetstone High School. On February 5, 2013, when Lindsey was on duty, a school bus driver approached him with a book bag that had been left on a bus, seeking to have it returned to its owner. Lindsey testified that he opened the bag and was able to quickly determine that it belonged to Polk.1 However, he began to search further and dumped out the bag, “just to, you know, be precautious, [sic] that's what we do.”2 (Tr. 6.) Lindsey said that when he saw Polk's name, he remembered rumors that Polk was in a gang and he admitted he was thinking about that when he dumped out the bag. However, he also testified that he would have dumped out the bag and searched it, regardless of to whom it belonged, because even though there was nothing outwardly suspicious about the bag, it was unattended.
{¶ 4} When Lindsey dumped out the book bag he found along with binders, books, and other school appropriate materials, several small caliber bullets. Lindsey notified the principal of what he found, and the principal in turn notified a Columbus Police Department (“CPD”) officer. The record is not clear about how soon after Lindsey found the bullets the next part of the investigation occurred. Lindsey testified that he thought (though he was not absolutely certain) that it was within 15 or 20 minutes that the principal, the CPD officer, and Lindsey acted together to find Polk.
{¶ 5} The three men encountered Polk in a hallway full of other students. Because of the number of other students present, the three directed Polk to an empty classroom. The CPD officer told Polk he was going to place him in a hold, asked him not to resist, and then restrained Polk. With Polk restrained, the CPD officer directed Lindsey to search the bag Polk had been carrying when the trio encountered him. Lindsey did and found a pistol in the bag.
{¶ 6} On September 29, 2014, the trial court issued a written decision in which it granted Polk's motion to suppress. The trial court found that Lindsey's initial inspection of the bag, by which he determined that Polk was the owner, was justified. However the trial court concluded that Lindsey's further search of the bag (conducted by dumping it out) was based on the rumors that “came into [Lindsey's] head” that Polk had ties to a gang, and that was an insufficient basis for the search. (Decision and Entry, 2.) Accordingly, the trial court suppressed bullets recovered in that search and the gun recovered in the subsequent search.
{¶ 7} The state now appeals pursuant to Crim.R. 12(K)
and App.R. 4(B)(4).
{¶ 8} The state advances a single assignment of error:
The Trial Court Committed Reversible Error in Sustaining Polk's Motion to Suppress.
{¶ 9} “However one may characterize their privacy expectations, students properly are afforded some constitutional protections.” N.J. v. T.L.O., 469 U.S. 325, 348, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)
(Powell, J., concurring). “[S]tudents do not ‘shed their constitutional rights ... at the schoolhouse gate.’ ” Id., quoting Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The school's need to maintain discipline and ensure the safety of its students, however, results in a lesser expectation of privacy for students than a person outside of school would enjoy. Id. at 337–40, 105 S.Ct. 733. Yet schools are not prisons and though a prisoner has no expectation of privacy, students do. Id. at 338, 105 S.Ct. 733, quoting Ingraham v. Wright, 430 U.S. 651, 669, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) ().
{¶ 10} In T.L.O. the United States Supreme Court struck a middle course between recognizing the full panoply of Fourth Amendment rights for students and affording them no privacy rights like prisoners. It found the warrant requirement to be inapplicable to schools and further said that probable cause was not necessary to justify a search in a school. Id. at 340–41, 105 S.Ct. 733
. Then it explained what justification is needed to search students:
[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the * * * action was justified at its inception,” Terry v. Ohio, 392 U.S. [1,] 20 [88 S.Ct. 1868, 20 L.Ed.2d 889 (1967)
]; second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place,” ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
(Footnotes omitted.) Id. at 341–42, 105 S.Ct. 733
.
{¶ 11} We afford deference to the trial court's factual determinations and review its recitation of historical facts with deference but we review statements of law and the application of law to facts de novo. See, e.g., Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)
; In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 50.
{¶ 12} The first search of Polk's property occurred when Lindsey examined the bag found on the bus and made a cursory inspection of its contents for safety purposes as an unattended bag, examined to determine if it posed a danger, such as containing a dangerous device, and for determining to whom the bag belonged. We find that this first search was reasonable and justifiable.
United States v. Wilson, 984 F.Supp.2d 676, 683 (E.D.Ky.2013) (); but cf.
Tangredi v. New York City Dept. of Environmental Protection, S.D.N.Y. No. 09 cv 7477(VB), 2012 WL 834580 (Feb. 16, 2012) (). Thus the need to determine ownership of the bag and to determine that it did not pose a hazard justified the limited intrusion of opening the bag and making a cursory examination of its contents.
{¶ 14} The justification for an intrusion or search expires when it is fulfilled, making further unjustified searches unlawful. See, e.g., Arizona v. Hicks, 480 U.S. 321, 323–25, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987)
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State v. Polk
...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......