[Cite as State v. Polk, 2016-Ohio-28.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellant,               :
                                                                       No. 14AP-787
v.                                                  :              (C.P.C. No. 13CR-2787)

Joshua Polk,                                        :           (REGULAR CALENDAR)

                 Defendant-Appellee.                :



                                             D E C I S I O N

                                         Rendered on January 7, 2016

                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellant.

                 Yeura R. Venters, Public Defender, and Timothy E. Pierce, for
                 appellee.

                   APPEAL from the Franklin County Court of Common Pleas

BRUNNER, 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.
I. FACTS AND PROCEDURAL HISTORY
         {¶ 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
No. 14AP-787                                                                                               2


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.

1Lindsey also testified that the book bag had Polk's name on it, but later clarified that Polk's name was not
actually imprinted on the exterior of the bag.

2Later in the hearing Lindsey also suggested that the principal was present and possibly helping when he
dumped out the bag and searched it.
No. 14AP-787                                                                                3


       {¶ 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).
II. ASSIGNMENT OF ERROR
       {¶ 8} The state advances a single assignment of error:
               The Trial Court Committed Reversible Error in Sustaining
               Polk's Motion to Suppress.
III. DISCUSSION
       {¶ 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
(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 (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. Yet schools are not prisons and
though a prisoner has no expectation of privacy, students do.           Id. at 338, quoting
Ingraham v. Wright, 430 U.S. 651, 669 (1977) (" '[the] prisoner and the schoolchild stand
in wholly different circumstances, separated by the harsh facts of criminal conviction and
incarceration' ").
       {¶ 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. 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
No. 14AP-787                                                                               4


               the * * * action was justified at its inception," Terry v. Ohio,
               392 U.S. [1,] 20 [(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.

       {¶ 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
(1996); In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, ¶ 50.
   A. Whether the Searches of Polk's Bags were Constitutional
       {¶ 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.
       {¶ 13} Polk had a "legitimate expectation of privacy" in his personal effects,
including his book bag. T.L.O. at 337-39. A legitimate expectation of privacy is composed
of "two elements: (1) whether an individual's conduct has exhibited such an expectation,
and (2) whether the individual's subjective expectation of privacy is one that society is
prepared to accept as reasonable under the circumstances." United States v. Dillard, 78
F.Appx. 505, 509 (6th Cir.2003); see also Smith v. Maryland, 442 U.S. 735, 740 (1979);
Rakas v. Illinois, 439 U.S. 128, 143 (1978), fn. 12; United States v. Tolbert, 692 F.2d 1041,
1044 (6th Cir.1982). In view of these two components, Polk's expectation of privacy in his
bag was diminished both by the fact that he was on school property with differing norms
and rules on search and seizure, and that he left the book bag on the bus, exposing it to
search to determine ownership and ensure that it was not an intentionally planted
No. 14AP-787                                                                                 5


dangerous package. See, e.g., United States v. Wilson, 984 F.Supp.2d 676, 683 (E.D.Ky.
2013) (explaining that law enforcement may look through lost and found containers to
determine the owner and the owner's contact information as well as to protect the
temporary custodian of the lost container from danger); but cf. Tangredi v. New York
City Dept. of Environmental Protection, S.D.N.Y. No. 09 cv 7477 (VB) (Feb. 16, 2012)
(finding the search of bag left unattended in a women's locker room to be unreasonable
and not justified by safety motivations). 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 (1987) (holding that a search for shooting victims or weapons following a shooting
in an apartment building did not extend, without additional justification, to moving stereo
equipment in order to record the serial numbers to determine if it was stolen). In Polk's
case no contraband was found during the initial search. Lindsey successfully determined
both that the bag was not a bomb and that it was owned by Polk (a student at the school)
during the initial search. After the initial search, all justifications for examining the bag's
contents were fulfilled and no further justification existed to search the bag.
       {¶ 15} Nonetheless a second search occurred when Lindsey took the bag to the
principal, emptied it, and made a more detailed inspection of its contents. Lindsey
testified he had two further justifications for the more detailed search. Lindsey testified
that rumors that Polk was in a gang came into his head once he identified the bag as
Polk's. He also testified that he thoroughly searches every unattended bag in the school
for safety reasons and that rumors about Polk's affiliations did not affect his decision to
empty the bag and thoroughly examine its contents because he would have done that no
matter whose bag it was. This testimony could be interpreted either as conflicting or as
different stages of an officer's "thought process," and interpreting it would be subject to
the discretion of the judge hearing the testimony on a motion to suppress. The trial court
found as a factual matter that the second search was motivated "solely" by rumors that
Polk had ties to a gang. The trial court did not abuse its discretion in making this finding.
See, e.g., Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, ¶ 37
(affording the factual findings of the trial court "great deference"); Testa v. Roberts, 44
No. 14AP-787                                                                                6


Ohio App.3d 161, 165 (6th Dist.1988) (affording a trial court's judgments on credibility
"the utmost deference").
        {¶ 16} 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."
(Decision and Entry, 4.) 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. It was not an abuse of discretion for the trial
court to conclude that Lindsey's testimony that he always intended to empty the bag was
not credible. Only after he found out that the bag belonged to Polk and remembered
rumors that Polk was affiliated with a gang did he empty the bag and perform a detailed
inspection of its contents. 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.
        {¶ 17} 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.
G.M. v. State, 142 So.3d 823 (Ala.2013) (mere association with a gang does not justify a
search in a school); see also Elfbrandt v. Russell, 384 U.S. 11, 14-16 (1966) (holding that
mere membership in a group with illegal purposes cannot be criminalized, as that would
violate the First Amendment); cf. Holder v. Humanitarian Law Project, 561 U.S. 1, 29
(2010) (finding valid Congress' criminalization of providing "material support or
resources" for terrorism on the basis that Congress specifically found that "organizations
that engage in terrorist activity are so tainted by their criminal conduct that any
contribution to such an organization facilitates that conduct"). (Emphasis omitted.)
        {¶ 18} The second search was not "justified at its inception." T.L.O. at 341, quoting
Terry v. Ohio, 392 U.S. 1, 20 (1968). The trial court did not abuse its discretion in
determining that Lindsey conducted the second and more detailed search of the bag based
solely on rumors that Polk was affiliated with a gang. Because that is a legally insufficient
No. 14AP-787                                                                                   7


basis for a search (even in a school), we agree that the second search of Polk's bag violated
the Fourth Amendment.
       {¶ 19} The bullets were discovered in the unconstitutional second search of Polk's
bag, and the bullets were the basis for suspecting that Polk might have a gun and
detaining Polk and conducting a third search. While we have great concerns about the
fact that a gun was found with Polk when a third search was conducted on school
premises, we cannot sacrifice the constitutional guarantee against unwarranted searches
and seizures, just because of the circumstances, when the fruits of the third search
emanated from a "poisonous tree." The gun was acquired by "exploitation" of the original
search or, as the United States Supreme Court put it, the "primary illegality." Wong Sun
v. United States, 371 U.S. 471, 487-88 (1963). The fruits of the search of Polk's person
and second bag were properly suppressed in Polk's criminal case. Id.
   B. Whether the Exclusionary Rule Applies to Searches Conducted by
      Public School Employees
       {¶ 20} The state argues that the exclusionary rule is intended to deter police officer
misconduct and thus should not apply to the school setting or school officials. However,
this argument has not been accepted by the United States Supreme Court. "The State of
New Jersey sought review in [the Supreme] Court, first arguing that the exclusionary rule
is wholly inapplicable to searches conducted by school officials, and then contending that
the Fourth Amendment itself provides no protection at all to the student's privacy. The
Court has accepted neither of these frontal assaults on the Fourth Amendment." T.L.O. at
371 (Stevens, J., concurring in part and dissenting in part). As the court in T.L.O. put it:
               [T]he State of New Jersey has argued that the history of the
               Fourth Amendment indicates that the Amendment was
               intended to regulate only searches and seizures carried out by
               law enforcement officers; accordingly, although public school
               officials are concededly state agents for purposes of the
               Fourteenth Amendment, the Fourth Amendment creates no
               rights enforceable against them.

               It may well be true that the evil toward which the Fourth
               Amendment was primarily directed was the resurrection of
               the pre-Revolutionary practice of using general warrants or
               "writs of assistance" to authorize searches for contraband by
               officers of the Crown. See United States v. Chadwick, 433
               U.S. 1, 7-8 (1977); Boyd v. United States, 116 U.S. 616, 624-
               629 (1886). But this Court has never limited the
               Amendment's prohibition on unreasonable searches and
No. 14AP-787                                                                               8


               seizures to operations conducted by the police. Rather, the
               Court has long spoken of the Fourth Amendment's strictures
               as restraints imposed upon "governmental action" -- that is,
               "upon the activities of sovereign authority." Burdeau v.
               McDowell, 256 U.S. 465, 475 (1921). Accordingly, we have
               held the Fourth Amendment applicable to the activities of civil
               as well as criminal authorities: building inspectors, see
               Camara v. Municipal Court, 387 U.S. 523, 528 (1967),
               Occupational Safety and Health Act inspectors, see Marshall
               v. Barlow's, Inc., 436 U.S. 307, 312-313 (1978), and even
               firemen entering privately owned premises to battle a fire, see
               Michigan v. Tyler, 436 U.S. 499, 506 (1978), are all subject to
               the restraints imposed by the Fourth Amendment. As we
               observed in Camara v. Municipal Court, supra, "[the] basic
               purpose of this Amendment, as recognized in countless
               decisions of this Court, is to safeguard the privacy and security
               of individuals against arbitrary invasions by governmental
               officials." 387 U.S., at 528. Because the individual's interest in
               privacy and personal security "suffers whether the
               government's motivation is to investigate violations of
               criminal laws or breaches of other statutory or regulatory
               standards," Marshall v. Barlow's, Inc., supra, at 312-313, it
               would be "anomalous to say that the individual and his private
               property are fully protected by the Fourth Amendment only
               when the individual is suspected of criminal behavior."
               Camara v. Municipal Court, supra, at 530.

Id. at 334-35. 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.
       {¶ 21} 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. Elkins v.
United States, 364 U.S. 206, 208 (1960), fn. 2 (prohibiting the practice of the silver
platter doctrine). Public school employees are state actors for the purposes of the Fourth
Amendment when they discover evidence and deliver it to the police or prosecutorial
authorities so that their students may be prosecuted. T.L.O. at 334-35. If the evidence
No. 14AP-787                                                                                           9


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. The
United States Supreme Court explained in Elkins that the silver platter doctrine arose out
of close cooperation between state officers (who were not then subject to the Fourth
Amendment) and federal officers (who were) which led to the realization that evidence
collected by the state officers in violation of the Constitution could be delivered on a
"silver platter" to the federal officers for use in federal cases. Id. at 211-13. As more and
more schools (like Whetstone) enjoy the security of on-site police officers, it is not hard to
envision the potential for evidence collected by school personnel to be taken by police free
of the threat of exclusion in order to convict students. We understand that contemporary
educational environments have been drastically affected by the proliferation of school
shootings. Yet, we cannot, even under those circumstances, revive a long defunct and
thoroughly denounced practice that violates the Constitution, so as to fashion a remedy
that fails Constitutional sanction. If a school employee violates the Fourth Amendment to
obtain evidence against a student, that evidence may not be used in a subsequent criminal
trial.3
          {¶ 22} Recognizing the relatively low standard of reasonableness set by T.L.O. in
school settings, the fact that not all crimes committed in schools are reported to law
enforcement, and the high likelihood that criminal cases involving students involve
juveniles, there are few published decisions about violations of the Fourth Amendment in
a public school context, and especially, cases concerning evidence collected in schools.
However, when a violation is found, most cases result in a court invoking the exclusionary
rule to appropriately enforce constitutional principles. See G.M. at 829; State v. Jones,
666 N.W.2d 142, 146 (Iowa 2003); D.I.R. v. State, 683 N.E.2d 251, 253 (Ind.App.1997); In
re William G., 709 P.2d 1287, 1298 (Cal.1985), fn. 17; In re: T.L.O., 463 A.2d 934, 943-44
(N.J.1983) rev'd on grounds that search was reasonable 469 U.S. 325 (1985); State v.
Mora, 307 So.2d 317, 320 (La.1975); People v. Scott D., 315 N.E.2d 466, 471

3 We do not address the question of whether the evidence obtained by a teacher in violation of the Fourth
Amendment could be used for purposes other than criminal prosecution (like school discipline). See, e.g.,
Immigration & Naturalization Servs. v. Lopez-Mendoza, 468 U.S. 1032, 1041-43 (1984) (the exclusionary
rule is not applicable to civil proceedings).
No. 14AP-787                                                                              10


(N.Y.App.1974); see also In Interest of L., 90 Wis.2d 585, 591-93 (1979) (finding
exclusionary rule applies in schools but not finding that the particular search at issue was
unreasonable).
       {¶ 23} In support of the contrary notion that the exclusionary rule does not apply
in schools, the state draws our attention to State v. Young, 216 S.E.2d 586 (Ga.1975). In
Young, the Georgia Supreme Court declined to apply the exclusionary rule in a school
search case because it believed the United States Supreme Court had not sanctioned the
use of the exclusionary rule in any context other than law enforcement officer actions. Id.
at 589-94. However Young pre-dated the United States Supreme Court's decision in
T.L.O. and has been persuasively criticized since:
               In State v. Young, 234 Ga. 488, 216 S.E.2d 586 (1975), the
               Georgia Supreme Court classified searches into three
               categories for purposes of the fourth amendment: (1) wholly
               private searches to which the amendment does not apply,
               (2) state action not involving law enforcement agents
               protected by the amendment but not the exclusionary rule,
               and (3) searches by law enforcement agents to which both the
               amendment and the exclusionary rule apply. Searches by
               teachers would fall within the second category and so would
               not be subject to the exclusionary rule. This classification does
               not adequately account, however, for evidence seized by a
               teacher and turned over to law enforcement agents. Once the
               evidence comes into the possession of law enforcement
               officers and is used in court proceedings against the liberty
               interests of the person searched, the exclusionary rule must
               be available to deter prosecutions based on unlawful
               searches. Without such exclusions, school personnel and
               other government employees would become the same sort of
               bypass around the amendment's protections that the Court
               meant to close by extending the exclusionary rule to state
               court proceedings in Mapp v. Ohio [367 U.S. 643, 654 (1961)].

(Emphasis added.) In Interest of L. at 592, fn. 1.

       {¶ 24} The state also argues that civil remedies under, for example, 42 U.S.C. 1983,
are a sufficient means to enforce the Fourth Amendment's guarantees and that we should
therefore discard the exclusionary rule because it entails the high cost of letting criminals
go free when the "constable blunders." But most such potential civil rights violators
already enjoy immunity.         See, e.g., Connick v. Thompson, 563 U.S. 51 (2011)
(prosecutorial immunity); Malley v. Briggs, 475 U.S. 335, 341 (1986) (qualified immunity
No. 14AP-787                                                                              11


for government agents and police); Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (judicial
immunity). Moreover, statutory governmental immunity insulates actors in many cases,
including in Ohio schools. See R.C. 2744.03.
       {¶ 25} There is no expectation of privacy in criminal material, and thus, a suspect
is not damaged by its discovery. Illinois v. Caballes, 543 U.S. 405, 409 (2005); Rakas at
143, fn. 12. However, when nothing is found, nothing is seized, and no loss inures to the
victim, except perhaps the temporary embarrassment associated with the search itself. In
response to the state's 42 U.S.C. 1983 scenario, such resulting nominal damages for a
search bearing no fruits will rarely justify the time and trouble of a federal lawsuit.
Therefore, without exclusion, there remains little to deter future activity that violates the
Fourth Amendment. As Justice Jackson observed:
               Only occasional and more flagrant abuses [of the Fourth
               Amendment] come to the attention of the courts, and then
               only those where the search and seizure yields incriminating
               evidence and the defendant is at least sufficiently
               compromised to be indicted. If the officers raid a home, an
               office, or stop and search an automobile but find nothing
               incriminating, this invasion of the personal liberty of the
               innocent too often finds no practical redress. There may be,
               and I am convinced that there are, many unlawful searches of
               homes and automobiles of innocent people which turn up
               nothing incriminating, in which no arrest is made, about
               which courts do nothing, and about which we never hear.
               Courts can protect the innocent against such invasions only
               indirectly and through the medium of excluding evidence
               obtained against those who frequently are guilty.
Brinegar v. United States, 338 U.S. 160, 181 (1949) (Jackson, J., dissenting). History has
shown that civil damages are not an adequate remedy for Fourth Amendment violations,
a fact recognized by the United States Supreme Court.
               The experience in California has been most illuminating. In
               1955 the Supreme Court of that State resolutely turned its
               back on many years of precedent and adopted the
               exclusionary rule. People v. Cahan, 44 Cal.2d 434, 282 P.2d
               905. "We have been compelled to reach that conclusion
               because other remedies have completely failed to secure
               compliance with the constitutional provisions on the part of
               police officers with the attendant result that the courts under
               the old rule have been constantly required to participate in,
               and in effect condone, the lawless activities of law
               enforcement officers. * * * Experience has demonstrated,
No. 14AP-787                                                                             12


               however, that neither administrative, criminal nor civil
               remedies are effective in suppressing lawless searches and
               seizures. The innocent suffer with the guilty, and we cannot
               close our eyes to the effect the rule we adopt will have on the
               rights of those not before the court." 44 Cal.2d 434, at 445,
               447, 282 P.2d 905, at 911-912, 913.
Elkins at 220.

       {¶ 26} 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." Weeks v. United States, 232 U.S. 383, 393 (1914).
   C. Whether a "Good-Faith" Exception to the Exclusionary Rule Applies
       {¶ 27} Courts have recognized a good-faith exception to the exclusionary rule when
a law enforcement officer relies on an established legal principle that later changes or
upon the judgment of a judicial officer removed from the "often competitive enterprise of
ferreting out crime." Johnson v. United States, 333 U.S. 10, 14 (1948); see, e.g., United
States v. Leon, 468 U.S. 897 (1984) (exception applied for good-faith reliance upon a
warrant later determined to be invalid); Illinois v. Krull, 480 U.S. 340 (1987) (exception
applied for good-faith reliance upon a statute later found to be unconstitutional); Arizona
v. Evans, 514 U.S. 1 (1995) (exception applied for good-faith reliance upon a database that
falsely indicated police had a warrant); Herring v. United States, 555 U.S. 135 (2009)
(same); Davis v. United States, 131 S.Ct. 2419 (2011) (exception applied for good-faith
reliance upon a "bright-line rule" of appellate decision that authorized the search and then
later changed to prohibit it); see also State v. Johnson, 141 Ohio St.3d 136, 2014-Ohio-
5021 (where past United States Supreme Court rulings authorized tracking an automobile
in public and then a new United States Supreme Court case held that placement of a GPS
device for the purpose of tracking an automobile in public was nonetheless a search for
purposes of the Fourth Amendment); State v. Brown, 142 Ohio St.3d 92, 2015-Ohio-486,
(where a probate judge improperly issued a warrant).
       {¶ 28} However, "Ohio courts, including this court, have declined to apply the Leon
good-faith exception in cases in which officers, conducting warrantless searches, relied on
No. 14AP-787                                                                             13


their own belief that they were acting in a reasonable manner." State v. Thomas, 10th
Dist. No. 14AP-185, 2015-Ohio-1778, ¶ 46, citing State v. Forrest, 10th Dist. No. 11AP-291,
2011-Ohio-6234, ¶ 17-18; State v. Simon, 119 Ohio App.3d 484, 488-89 (9th Dist.1997).
In short, " 'good faith on the part of the * * * officers is not enough.' If subjective good
faith alone were the test, the protections of the Fourth Amendment would evaporate, and
the people would be 'secure in their persons, houses, papers, and effects,' only in the
discretion of the police." See Beck v. Ohio, 379 U.S. 89, 97 (1964), quoting Henry v.
United States, 361 U.S. 98, 102 (1959).
       {¶ 29} Here Lindsey relied on his own judgment in deciding to search Polk's bag
based "solely" on rumors that Polk was a gang member. This act violated the Fourth
Amendment, and the evidence obtained thereby could not be used in a subsequent
criminal proceeding. No facts exist in this case to support the application of a "good-faith
exception" to alter this conclusion. Appellant's assignment of error is overruled.
IV. CONCLUSION
       {¶ 30} Having overruled the state's sole assignment of error, we affirm the decision
of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.

                    LUPER SCHUSTER, J., concurs in judgment only.
                   DORRIAN, P.J., concurs in part and dissents in part.

DORRIAN, P.J., concurring in part and dissenting in part.

       {¶ 31} For the following reasons, I respectfully concur in part and dissent in part
with the majority opinion.
       {¶ 32} I concur with the majority that the initial search of the bag for safety and
identification purposes was reasonable and justifiable. (Lead opinion, ¶ 12.) I also concur
with the majority that, 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. (Lead opinion, ¶ 16.)
       {¶ 33} However, I respectfully dissent from the majority's conclusion regarding the
second search. Because the trial court applied the wrong standard to the second search, I
dissent from the majority and would remand this case to the trial court for application of
the correct standard. The trial court quoted from the United States Supreme Court
opinion in N.J. v. T.L.O., 469 U.S. 325, 341-42 (1985), and correctly stated that:
No. 14AP-787                                                                              14


                Rather, the 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 [(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.

(See Sept. 29, 2014 Decision and Entry, 3.) However, when considering the second
search, the trial court applied the test outlined in T.L.O. for the initial search. The court
stated:
                In order to justify the second and more intrusive search given
                these particular facts (i.e. dumping out the entire contents of
                the book bag), Officer Lindsay must have had "reasonable
                grounds" for suspecting that the search would turn up
                evidence that the Defendant had violated or was violating
                either school rules or the law. While the standard for school
                searches is lower than that of probable cause, it requires more
                than "vague unsubstantiated reports." Commonwealth vs.
                Cass, 446 Pa.Super.66 at 75 (1995).

(Decision and Entry, 4.) The trial court concluded that:

                [T]he second search was conducted solely based on the
                identity and reputation of the owner. This does not equate to
                "reasonable grounds" for suspecting the violation of school
                rules or the law.

(Emphasis added.) (Decision and Entry, 4.)
          {¶ 34} Because the court's question regarding the second search should have been
whether the measures adopted were reasonably related to the objectives of the initial
search (safety and identification) and whether the search was not excessively intrusive in
light of the age and sex of the student and the nature of the infraction, I would remand the
No. 14AP-787                                                                                             15


case to the trial court to consider the same. See State v. Adams, 5th Dist. No. 01 CA 76,
2002-Ohio-94 ("[t]he second element that must be considered in determining the
reasonableness of a search by a school official is whether '* * * the search as actually
conducted "was reasonably related in scope to the circumstances which justified the
interference in the first place * * *." ' T.L.O., 469 U.S. at 341. This requires that the '* * *
measures adopted * * * [be] 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.' Id. at 342.").
        {¶ 35} Remanding the case to the trial court would moot, at this time, the question
of whether the exclusionary rule applies in the public school context and particularly in
this case. Nevertheless, regarding the discussion of the exclusionary rule, I feel compelled
to note that I disagree with the majority's suggestion that the T.L.O. case already
determined the issue of whether the exclusionary rule applies in a school setting to school
officials.   In suggesting the same, the majority states that "[the argument that the
exclusionary rule should not apply to the school setting or school officials] has not been
accepted by the United States Supreme Court." (Lead opinion, ¶ 20.) In support of this
conclusion, the majority points to Justice Stevens' concurring in part and dissenting in
part opinion in T.L.O.4 Id.
        {¶ 36} Contrary to the majority's suggestion, however, in footnote 3 of the T.L.O.
majority opinion, the United States Supreme Court expressly stated:
                In holding that the search of T.L.O.'s purse did not violate the
                Fourth Amendment, we do not implicitly determine that the
                exclusionary rule applies to the fruits of unlawful searches
                conducted by school authorities. The question whether
                evidence should be excluded from a criminal proceeding
                involves two discrete inquiries: whether the evidence was
                seized in violation of the Fourth Amendment, and whether the
                exclusionary rule is the appropriate remedy for the violation.
                Neither question is logically antecedent to the other, for a
                negative answer to either question is sufficient to dispose of
                the case. Thus, our determination that the search at issue in
                this case did not violate the Fourth Amendment implies no

4 Justice Stevens stated: "The State of New Jersey sought review in this Court, first arguing that the
exclusionary rule is wholly inapplicable to searches conducted by school officials, and then contending that
the Fourth Amendment itself provides no protection at all to the student's privacy. The Court has accepted
neither of these frontal assaults on the Fourth Amendment." T.L.O. at 371, Justice Stevens concurring in
part and dissenting in part. (Justice Marshall and Justice Brennan joining.)
No. 14AP-787                                                                        16


               particular resolution of the question of the applicability of the
               exclusionary rule.

      {¶ 37} The question of whether the exclusionary rule applies in the public school
setting is a question yet to be determined by the United States Supreme Court and thus
far has not been considered or answered by the Supreme Court of Ohio or this court.
While I agree that it is an important question which deserves careful consideration, I
would not begin the discussion with the suggestion that the United States Supreme Court
in T.L.O. has already answered the question.
      {¶ 38} For these reasons, I concur in part and dissent in part.
