Ohio court considers privacy rights in backpack search

COLUMBUS, Ohio (AP) — The Ohio Supreme Court is weighing the constitutionality of a student’s backpack search that authorities say led first to the discovery of bullets and later a gun.

At issue before the high court is whether a second search of the backpack violated the student’s privacy rights, which are generally weaker inside school walls.

Courts say schools need “reasonable suspicion” for a search, compared to the higher “probable cause” evidence outside of school settings.

A security official at Whetstone High School in Columbus searched the backpack in 2013 after it was found on a bus, according to court filings. The official conducted a second search after he recalled that the student had alleged gang ties, and found 13 bullets after dumping the bag’s contents, records show.

That search led to police being called and the discovery of a gun in another bag the student had, according to court records. The student, Joshua Polk, has been charged with possessing a deadly weapon in a school safety zone.

The case is still pending. Prosecutors in Franklin County appealed after two lower courts tossed out the evidence against Polk because of the second search.

The circumstances of the search can’t be justified, even in today’s environment with concerns about school shootings, the Franklin Court appeals court ruled in January of last year.

“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,” Judge Jennifer Brunner wrote for the three-judge panel.

The high court scheduled arguments for Wednesday. A decision is months away.

Prosecutors argue that Polk, who was 18 at the time, gave up his privacy rights when the bag was left on a school bus.

Not every discovery of a dangerous item in a backpack means police should be called, said Seth Gilbert, an assistant Franklin County prosecutor.

“But when the search of an unattended bag leads to the discovery of a gun, it is hardly unreasonable to initiate criminal proceedings,” Gilbert wrote in an Oct. 14 filing.

Six school associations representing school boards, administrators, teachers and others have sided with prosecutors to argue that the search was justified.

Polk’s attorneys argue the school went too far when the security officer conducted a fuller search simply because of rumors he recalled about Polk.

Polk is backed by 15 youth law groups around the country who are urging the Supreme Court not to overturn the lower court rulings. They say the increased presence of security officers in schools nationally is creating a culture that refers thousands of students to police each year, raising concerns about their constitutional rights.

“Such a bold and effectively unprecedented decision would render the Fourth Amendment meaningless for Ohio’s school children,” Marsha Levick, an attorney with the Philadelphia-based Juvenile Law Center, said in a Sept. 14, 2016 filing. “No such sweeping erosion of children’s Fourth Amendment rights is justified.”


Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus. His work can be found at http://bigstory.ap.org/content/andrew-welsh-huggins