Challenged By Cord Cutting, The Discovery Channel Seeks Redemption In The Wake Of Honey Boo Boo

Court Points Out The Fourth Amendment Still Protects Public School Students From Illegal Searches

from the expectations-of-privacy,-even-in-a-public-setting dept

Tue, Jan 19th 2016 3:33pm — Tim Cushing

Students don't sacrifice their Constitutional rights when they walk through the school's door. Their protections are somewhat diminished but they don't evaporate completely. There are reasons their rights aren't eliminated and those are tied to the operation of government employees outside of the school doors.

A recent decision by an Ohio Appeals Court reiterates this fact and spells out exactly why we shouldn't treat minors as possessors of only a minimum amount of civil liberties. (via 4thAmendment.com)

At issue is a warrantless search of a student's bag under the suspicion that he was carrying a gun. Considering the number of "zero tolerance" policies in place in many schools, you'd think the student's rights would immediately have become subservient to the exercise of those policies. Not so.

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. 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.

There's your first rights violation. A warrantless, nearly suspicionless search of a student's bag that went beyond the cursory search needed to determine ownership. The single witness showed his disregard for the students under his care by stating he would have dumped the bag out and searched it even without having heard somebody say something about this student possibly being a gang member.

Inside the bag were some bullets. The student was apprehended in the hallway and restrained. He was then searched in an empty classroom by a law enforcement officer. In the bag Polk was carrying with him was a gun. Despite the apparent severity of the situation, the lower court found (and the Appeals Court confirmed) that, while the cursory search to determine ownership was constitutional, the emptying of the bag left on the bus was not.

We agree with the trial court that the second search could have been justified at the outset, "[i]f Officer Lindsay [sic] had dumped the entire contents of the bag in his initial search for safety purposes and/or to obtain the owners [sic] identity." That is, in a school setting, emptying the entire bag would have been an acceptable way to meet the two initial justifications for the search: safety and identification. But Lindsey did not empty the bag at first. He testified he took the bag to the principal's office, recalling that rumors existed that Polk was involved in gang activity, and then emptied the contents of the bag… The trial court was well within its fact-finding discretion to conclude, based on the circumstances, the testimony and its ability to evaluate the officer's credibility, that the second search was based "solely" on rumors of Polk's gang affiliation.

Rumors do not rise to reasonable suspicion, and mere affiliation with a criminal group does not constitute a crime or a justification for a search, even in a school.

Because the results of the unconstitutional second search led directly to the third search, both the bullets and the gun were suppressed. And while it may seem unconscionable that a student who brought a weapon to school will "get away with it," there's a very good reason why his Fourth Amendment rights are being recognized. If they were waived under the assumption that the lowered expectation of privacy afforded to students made the second search constitutional, the system would open itself up to further abuse.

The state argued the exclusionary rule (under which the gun and bullets were suppressed) only applies to law enforcement officers. The court corrects this misinterpretation, reminding the school that the rule applies to all government employees with the power to act on behalf of the state.

In short, public school employees are state actors for purposes of the Fourth Amendment, and evidence collected by teachers when they (or a school safety officer) investigate a student to determine whether the student has committed a criminal act may be subject to the exclusionary rule if a subsequent criminal prosecution occurs.

If the court had found otherwise, it not only would have gone against US Supreme Court precedent, but would have given the state a way to route around limitations imposed by the Fourth Amendment.

To hold otherwise would be to revive what was known as the silver platter doctrine for use against Ohio's school children. This doctrine allowed law enforcement agents from jurisdictions outside the reach of the Fourth Amendment to develop evidence through means that would otherwise have been unconstitutional and then deliver that evidence on a "silver platter" to law enforcement officers who were subject to the Fourth Amendment's strictures in order to avoid the operation of the exclusionary rule...

If the evidence they collect in violation of the Fourth Amendment were able to be used when turned over to law enforcement, school employees would have little incentive to respect students' rights, and worse, law enforcement would have an incentive to use school employees as Fourth Amendment-immune agents to conduct illegal student searches in schools.

And no local government can act as though this wouldn't be abused, because it was this exact abuse that lead to the Supreme Court decision: federal law enforcement using local law enforcement to route around the Fourth Amendment restrictions on wiretaps.

To grant the state's arguments credence would undercut this fundamental American right. The court concludes by pointing out that the sting of losing evidence in criminal cases is meant to keep the government honest. It doesn't do its job as well as it should -- and the court notes it's of almost no use in civil litigation -- but the deterrent cannot be removed simply because a guilty person was apprehended.

The Fourth Amendment exists to be enforced, which means providing a remedy. As civil liability (in light of wide-ranging immunity and lack of practical damages) has not proven effective, exclusion, despite its costs, is the available remedy. Without the remedy of exclusion, no practical remedy would exist for Fourth Amendment violations, and "the protection of the Fourth Amendment declaring [one's] right to be secure against such searches and seizures [would be] of no value, and… might as well be stricken from the Constitution."

2016-Ohio-28 (PDF)2016-Ohio-28 (Text)

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Filed Under: 4th amendment, columbus, ohio, public schools, robert lindsey, search, warrants
Companies: whetstone high school

39 Comments

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Anonymous Coward, 19 Jan 2016 @ 4:09pm

Still BULLSHIT!!!
Justice Delayed is Justice Denied!
So Diminished Rights is the same as Rights Denied!
If a student will not sit down and shut up to learn, remove them from school. There is no need to trample on rights to educate the children! Let their parents educate them or get the parents permission for the school to search the locker.

Students are nothing more than political prisoners begin brainwashed and provided for a less than 2nd class education.
If we where even remotely serious about education most people would be graduating College by age 18.

School should be an information nexus where children learn and play, along with taking regular trips to businesses of all types to see what a day in the life is like. All Religions should be discussed on their well established histories without proselytizing (it is possible), sex education should be taught at puberty cause that is when they have to face hormonal life not based on someones cocked up political or religious bullshit.

Dear American, and humanity in general. You are clearly living up to the accusation in the Judeo-Christian bible that all man is born evil. You are more corrupt than the politicians you curse!
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Personanongrata, 19 Jan 2016 @ 4:17pm

A Partial Shield Against Tyranny is Worse than a Roof That Leaks in the Rain
Court Points Out The Fourth Amendment Still Protects Public School Students From Illegal Searches

But not civil asset forfeiture.
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Kaden (profile), 19 Jan 2016 @ 4:34pm

Re: Still BULLSHIT!!!
Foaming at the mouth a bit there, dude.
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Kaden (profile), 19 Jan 2016 @ 4:34pm

Re: A Partial Shield Against Tyranny is Worse than a Roof That Leaks in the Rain
Public school students are a low yield revenue stream.
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Anonymous Coward, 19 Jan 2016 @ 4:43pm

What the state fails to recognize is that the minute the security officer searched the backpack, he became a defacto agent of the police department. It would be the same if the police officer or district attorney asked a private citizen to go into the interrogation room and try to get the suspect to admit to a crime.

The school employees were then defacto agents of the police and this is what brings up the constitutional issues regarding the search. What the security officer should have done is call in the police because of the unattended bag and clear out the bus.

Overkill it might be, but at least the police would be within their right to search the bag to determine if it was safe.
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Anonymous Coward, 19 Jan 2016 @ 5:06pm

Re: Re: Still BULLSHIT!!!
true, but he still has a point.
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Anonymous Coward, 19 Jan 2016 @ 5:42pm

Re: Still BULLSHIT!!!
Such a low opinion of education indicates bias. Obviously, simplistic generalizations will be incorrect.

"You are clearly living up to the accusation in the Judeo-Christian bible that all man is born evil"

Me? ... Really? .. Blind accusations are such fun and the bible proves it!

"You are more corrupt than the politicians you curse!"

Nice. First you insult me, and then you accuse me of committing crimes. Perhaps you should re-read that good book of yours and this time pay particular attention to the part about bearing false witness. Hint .. it is one of those ten things.
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Anonymous Coward, 19 Jan 2016 @ 5:48pm

Re: A Partial Shield Against Tyranny is Worse than a Roof That Leaks in the Rain
Your lunch money is guilty as sin .. hand it over or eat a knuckle sandwich.
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Anonymous Coward, 19 Jan 2016 @ 5:49pm

Re:
And then have the disposal team blow the bag up.
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lucidrenegade (profile), 19 Jan 2016 @ 5:58pm

All this ruling means is that they will always dump the contents of the bag to determine the owner.
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Anonymous Coward, 19 Jan 2016 @ 5:58pm

And no local government can act as though this wouldn't be abused, because it was this exact abuse that lead to the Supreme Court decision: federal law enforcement using local law enforcement to route around the Fourth Amendment restrictions on wiretaps.

Why does the government always feel it has to constantly tread on the very edge of what might be constitutional? Can't they ever think "regardless of what the courts will do, this might be violating someone's rights" instead of "there's a chance the courts will let this go, so we should automatically try it"?
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INOC | NOC Cloud Application, 19 Jan 2016 @ 6:11pm

INOC | NOC Cloud Application
This is such an unfortunate event. A bag search to identify the owner is one thing, but going through its contents after identifying the owner of the bag is a blatant abuse of power and a complete violation of one’s rights. And although there are rumors surrounding the owner, the officer still don’t have the right and enough justification to rifle the contents of the bag, let alone dump them. I agree with what was said that rumors don’t tantamount to suspicion and that affiliation to a criminal group doesn’t make the person a criminal or isn’t enough to execute such inspection. If anything, the security officer isn’t a police to undertake such inspection.
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Hannibal, 19 Jan 2016 @ 6:22pm

Re: Re: A Partial Shield Against Tyranny is Worse than a Roof That Leaks in the Rain
I'll take the knuckle sandwich Sfifififififififi!
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Anonymous Coward, 19 Jan 2016 @ 9:04pm

Re: Re: Still BULLSHIT!!!
Do you know what bearing false witness means? It is intentionally saying something untrue. If the person believes what they are saying then they are not lying, even though they may still be wrong.

The education system is terrible so anyone with wisdom would certainly be biased against it, just like any other sane person would be biased against BAD or TERRIBLE things!

And most simplistic generalizations are correct because that is how they became generalizations. Sure there are exceptions and sure we have to fight our own natures so that the generalizations do not rule our thinking to the point that the exceptions are unfairly impacted, but identifying a terrible institution does not negatively impact anyone, it instead provides light so that those exceptions might be more easily discovered and possibly helped.

Seems to me like you might like to do some head in sand activities to help you get through life.
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Anonymous Coward, 19 Jan 2016 @ 9:21pm

Re: Re: Still BULLSHIT!!!
When they first came for the people that I considered nut bags, I said nothing, did nothing.
When they first came foe the people that I considered insane, I said nothing, did nothing.
Now they are coming for me, because they said I was an insane nut bag... and away you go.

Extremism in the defense of liberty is no vice.

At what point should the citizens try to stop a corrupt government? When they illegally search 1 students locker? Cause that has happened, when they search 100 students lockers? That has already happened. When they have searched a million students lockers? That has happened already too! When does it end?

You tell me how many people have to suffer tyranny before YOU no longer consider them foaming at the mouth?
You tell me how many more students have to suffer this insane system that expels children for making a gun with their finger, wearing the American Flag, and fails to properly educate the children while administrative entities absorb every last penny they can with lies and bullshit.

Do they have to start beating students with canes that get bad grades to get YOUR attention? They are already putting kids in actual jail or giving them criminal records for very stupid shit as it is!
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XKCD, 19 Jan 2016 @ 9:31pm

Has something for everything
So it has come to this.
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Anonymous Coward, 20 Jan 2016 @ 12:34am

I would ask why he had the gun or how he got access to a gun.
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Good lord, 20 Jan 2016 @ 1:06am

Re: Re: Re: Still BULLSHIT!!!
Dude, you're crazy mate. Take a chill pill. People like you are why those who blow the whistle get ignored. Stop fucking crying wolf.
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Anonymous Coward, 20 Jan 2016 @ 4:52am

Re: Re: Re: Still BULLSHIT!!!
"fails to properly educate the children while administrative entities absorb every last penny they can with lies and bullshit."

You're referring to charter schools here - right?
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Anonymous Coward, 20 Jan 2016 @ 5:09am

Re: Re: Re: Still BULLSHIT!!!
Do I even know ... why would you think I do not?

If you believe that apple is really an orange, saying you believe so is not a lie - however that does not make it true. Nor does it remove any responsibility for your claims.

You claim "the education system" is terrible and yet provide no data in support of said claim, no indication as to what exactly is terrible and expect others to simply accept your conclusions as fact. Ever wonder why others avoid you?

That third paragraph is near incomprehensible. Oh, and its premise is incorrect.

"Seems to me like you might like to do some head in sand activities to help you get through life."

I am getting thru life quite fine but thanks for your concern. Think I'll refrain from the head in sand thing, never really understood that. btw - contrary to popular belief, ostriches do not put their heads in sand when frightened.
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Anonymous Coward, 20 Jan 2016 @ 5:55am

A lot of glib comments here, but what would people say if the security guard had not found the gun, returned it to the student and the student then loaded his gun and killed 5 people in a classroom? Would people then blame the school for having the security guard give the kid bullets?
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Anonymous Coward, 20 Jan 2016 @ 6:44am

Re:
The "what if" argument - awesome!
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nasch (profile), 20 Jan 2016 @ 6:52am

Re: Re: Re: Still BULLSHIT!!!
And most simplistic generalizations are correct because that is how they became generalizations.

Wow... just... wow. You know, this is basically equivalent to "most beliefs are correct because that's how they become beliefs". And just as nonsensical.
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Anonymous Coward, 20 Jan 2016 @ 6:54am

so,
SCHOOLING does not fuck your constitutional rights?
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nasch (profile), 20 Jan 2016 @ 6:54am

Re:
The school employees were then defacto agents of the police and this is what brings up the constitutional issues regarding the search.

They were agents of the state before, during and after the search (ie any time they're on duty). It's not necessary to consider whether they were agents of the police specifically, which is good because I doubt one could make a very strong case for that claim in this instance.
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nasch (profile), 20 Jan 2016 @ 6:56am

Re:
Would people then blame the school for having the security guard give the kid bullets?

People would, yes. But maybe not the same people who are against students' civil rights being violated on a whim.
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Anonymous Coward, 20 Jan 2016 @ 6:57am

Re:
What would people say if the student loaded his gun and killed 5 terrorists in a classroom? Would people blame the school having the security guard take away the kid's bullets?
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Anonymous Coward, 20 Jan 2016 @ 7:06am

since schooling has f%cked your reading capabilities and basic history knowledge...
since you have been been maimed into not been able to read more than 140 characters...
we have made this into an easy video you can follow
https://www.youtube.com/watch?v=G3nVwrSk1p4
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Anonymous Coward, 20 Jan 2016 @ 7:09am

Re: Re:
"And then have the disposal team blow the bag up."
the CSI would find traces of gunpowder in the ashes and jailed the kid for life as a "trrrrist"

MURICAAAAAAAA YEAAH
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Anonymous Coward, 20 Jan 2016 @ 7:12am

Re:
"I would ask why he had the gun or how he got access to a gun."

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

FREEEEDOM
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Mason Wheeler (profile), 20 Jan 2016 @ 7:13am

Re: Re: Still BULLSHIT!!!
Don't feed the trolls. Just click Report and ignore him.
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Anonymous Coward, 20 Jan 2016 @ 7:16am

All of this just makes me wish I pushed the subject when a class I was in was forced to all dump our bags because *one* drafting compass went missing. Made us late for our next class, and surprise surprise, no one had it in their bag anyway.

Eh who am I kidding. We were a poor school, no one would have cared if we kicked up a stink.
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MonkeyFracasJr (profile), 20 Jan 2016 @ 7:31am

The most important part of the Second Amendment
A WELL REGULATED MILITIA, being necessary ...

mi·li·tia
məˈliSHə
noun

"a military force that is raised from the civil population to supplement a regular army in an emergency."

Random individuals with guns are not a militia. The term "military force" implies some basic level of ORGANIZATION and training of individuals in to a group with clear and specific responsibilities and objectives.

I am all for the Second Amendment, but I believe you should prove you are worthy and capable of the rights granted therein. And if you do not find an organization you like and agree with to gain that knowledge from do not be surprised when one you do not like or agree with finds you and declares you un-worthy.
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Isma'il, 20 Jan 2016 @ 8:36am

Re: The most important part of the Second Amendment
You forgot about the rest of the most important part of the Second Amendment, the second clause:

"The right of the PEOPLE to keep and bear arms, shall not be infringed."

The same people (specific word) referenced in Amendments 1, 4 ,5 (as "person," singular of "people"), 9, and 10, as well as inferred in Amendments 3, 6, 7, and 8.

Nice try.

P.S. I'm not in favour in any way for a student bringing a gun to school, but rights are rights.
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Isma'il, 20 Jan 2016 @ 8:54am

Re: Re: The most important part of the Second Amendment
One more thing:

Before you prepare your rebuttal, Have a look at the SCOTUS decision "District of Columbia v. Heller." Note that the SCOTUS upheld the 2nd Amendment as an INDIVIDUAL right, i.e. people from the cop on the street to the corn farmer in Iowa, rather than a COLLECTIVE right, i.e. the "militia" or "army" concept you were trying to argue in favour of.
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Anonymous Coward, 20 Jan 2016 @ 5:37pm

Re: Re:
The only way to stop a bad student with a gun is a good student with a gun. /s .. of course
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Anonymous Coward, 20 Jan 2016 @ 5:38pm

Re:
Semantics says no, it does not.
It is the foolish people in charge of administering schools.
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Anonymous Coward, 20 Jan 2016 @ 5:39pm

Re:
Speak for yourself please.
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Wendy Cockcroft, 21 Jan 2016 @ 5:35am

Re: Re: Re: Re: Still BULLSHIT!!!
The man is upset that these things are happening and it's hard to think straight when you're angry, I get that.

So... what do we do? I don't approve of violence as it'd lead to martial law and lockdown.

The trouble is, we're not really engaging properly in the democratic process because we've lost faith in it. Imagine what we could achieve if we actually started taking more of an interest in how public administration actually works and started working to build a consensus outside of the Kang and Kodos dichotomy.

I've already seen the results in the slaying of SOPA and ACTA. We can do it, we just need to keep the momentun going. Pressure works.
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