[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-2735

THE 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. 

_________________ 
SUPREME COURT OF OHIO

2

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 
January Term, 2017 

3

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 
SUPREME COURT OF OHIO

4

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: 
January Term, 2017 

5

(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, moreintrusive investigatory search” conducted by Lindsey and Barrett violated the 

Fourth Amendment.
SUPREME COURT OF OHIO

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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). 
January Term, 2017 

7

{¶ 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 
SUPREME COURT OF OHIO

8

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 
January Term, 2017 

9

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 studentathlete); 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 
SUPREME COURT OF OHIO

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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. 
January Term, 2017 

11 

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. 
SUPREME COURT OF OHIO

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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-Ohio71, 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 
January Term, 2017 

13 

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 
SUPREME COURT OF OHIO

14 

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-Ohio5372, 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. 
January Term, 2017 

15 

{¶ 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 
SUPREME COURT OF OHIO

16 

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 
January Term, 2017 

17 

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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