Emil Ford Lawyers

No Bag left Behind

Students often leave schoolbags on school property. It is a rare day indeed to have no bag left behind. But in this age of terrorism, what response is reasonable when a bag is found unattended?

A schoolbag was found unattended on a school bus in Ohio by a school security officer, Robert Lindsey. Lindsey conducted a quick search in order to find out who the bag belonged to and to make sure that there was nothing dangerous in it. According to Lindsey, he conducted dozens of such searches each day. Lindsey’s cursory search turned up the name of the student who owned the bag, but nothing dangerous. The bag belonged to Joshua Polk, a student at Whetstone High School, who was believed to be part of a gang.

Knowledge of Polk’s possible gang involvement led Lindsey to bring Polk’s bag to the Principal’s office in order to conduct a more thorough search. In this search, Lindsey discovered bullets in the bag.

A police officer then joined Lindsey in finding Polk and searching him. In this search, Lindsey and the police officer found a handgun in another bag that Polk had with him.

Polk was charged with crimes that related to gun possession at a school. His lawyers challenged both the search of Polk’s unattended school bag as well as the search of the bag that he had with him. They agreed that the first search of the unattended bag was permissible but argued that the second more thorough search conducted of the bag was unjustified as it was based on the rumour that Polk was affiliated with a gang.

Polk’s lawyers also argued that regardless of the legality of the search of the bag that Polk had with him, the discovery of the gun was the direct result of the second search of the unattended bag, which they argued was unconstitutional.

Although two lower courts had agreed with Polk, the Ohio Supreme Court noted that the United States as a whole has become more suspicious and vigilant about unattended luggage and bags in this age of terrorism, and particularly at schools in light of the deadly shootings that that occurred at schools, such as at Columbine High School in Colorado and at Sandy Hook Elementary School in Connecticut.

The Court found that the protocol in place at Whetstone High School for unattended backpacks and bags ‘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’.

The state supreme court also rejected the lower court’s conclusion that Whetstone High School’s policy was satisfied by the initial, cursory search of Polk’s unattended schoolbag stating, ‘A cursory inspection might easily fail to detect the presence of small but dangerous items’.

In the Court’s opinion, ‘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 the execution of Whetstone’s reasonable protocol for searching unattended book bags could not be completed—until the bag was emptied’.

The court returned Polk’s case to a trial court for further proceedings.

Of course, concerns about terrorism do not stop at the American border. Australia has the same concerns and, as is becoming clearer with each passing year, those concerns are present in schools. Schools in Australia are permitted to conduct searches of unattended items in order to determine the identity of the owner, as well as to make sure that there is nothing dangerous present. Such searches are reasonable.

Some independent schools have had enrolment contracts drafted that state at the beginning of a child’s enrolment at a school the right of that school to search unattended belongings. If your school has a similar need to either clarify the rights that it has in regard to student property left on school premises or to draft such terms in a contract, please contact , or . We’d be happy to help in any way that we can. 

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