Wednesday, March 1, 2017
Ronald and Barbara Bohlen v. Anadarko E&P Onshore LLC et al., Case no. 2015-0187
Fourth District Court of Appeals (Washington County)
City of Cleveland v. Benjamin S. Oles, Case nos. 2016-0172 and 2016-0282
Eighth District Court of Appeals (Cuyahoga County)
State of Ohio v. Sherry Bembry and Harsimran Singh, Case no. 2016-0238
Seventh District Court of Appeals (Mahoning County)
State of Ohio v. Joshua Polk, Case no. 2016-0271
Tenth District Court of Appeals (Franklin County)
Ronald and Barbara Bohlen v. Anadarko E&P Onshore LLC et al., Case no. 2015-0187
Fourth District Court of Appeals (Washington County)
- Are “delay rental” payments equivalent to “minimum advance royalty” payments in an oil and gas lease, and can they be construed to be the same when seeking to terminate a lease for nonpayment?
- Are “delay rental” clauses limited to the primary term of an oil and gas lease or can a lease’s language alter the meaning of the term to extend the clause into the secondary term?
Ronald and Barbara Bohlen own 500 acres in Lawrence Township, Washington County, and entered into a lease in 2006 with Alliance Petroleum Corp. to explore and drill for oil and gas on six tracts of noncontiguous land. Alliance used a common oil and natural gas lease form, in which the lease contained a primary term that was to last one year, and a secondary term that extended indefinitely as long as oil and gas were produced or capable of being produced in paying quantities.
The primary term required drilling a well within the first year of the lease or paying a “delay rental” fee to postpone drilling. Alliance first drilled a well in September 2006 on one of the six Bohlen tracts, and later that month drilled a second well on a second tract. The first well produced a nominal amount of gas through 2007, but it didn’t produce oil. It hasn’t produced gas since 2008. The second well didn’t produce oil, but produced gas from 2007 to 2012. However, its production declined by more than half during that period.
Alliance partially assigned its interest in the Bohlens’ lease in 2011 to Anadarko E&P Onshore, which in 2014 assigned its interest to Artex Energy Group. The energy companies didn’t do any further drilling on the Bohlen property.
Contract Provisions Disputed
The lease’s delay rental provision obligated Alliance to pay $5,500 for each year it delayed drilling a well. An addendum to the lease contained a provision that stated: “In the event that during any calendar year the total royalties paid from production of the leased premises, shall be less than the annual rental of $5,500, lessee shall tender to lessor such sum that will equal to the $5,500 annual rental payment.”
The Bohlens interpreted the provision to mean that Alliance had to make up any royalty shortfall below $5,500 per year by paying the difference as a “rental payment.” Royalty payments for years 2008 through 2013 were below $5,500, and Alliance never made the full rental payments to assure the Bohlens received $5,500 annually.
Another provision of the lease indicated that if “rental payments” of $5,500 weren’t made the lease would terminate. The Bohlens noted that the standard form used by Alliance wouldn’t have terminated the lease for payment shortfalls, but the provision preventing termination was struck out on the contract.
Bohlens Seek to Terminate Lease
The Bohlens filed a lawsuit against Alliance and Anadarko in Washington County Common Pleas Court in 2013, arguing that the companies’ failure to make the required payments terminated the lease. They also argued the lease’s language constituted an indefinite lease, which violated public policy and made it void.
The trial court granted summary judgment to the Bohlens, and the energy companies appealed to the Fourth District Court of Appeals. The Fourth District reversed the decision, ruling the $5,500 payment language for royalties in the addendum didn’t make it part of the original lease to the point that it equated a delayed rental fee. It ruled the trial court conflated to the two provisions to find that nonpayment of the royalties triggered the termination clause.
The Fourth District found that “established precedent” generally limits the application of a delay rental fee to the primary term of a lease, which in this case was one year. The appellate court found Alliance complied with the lease because it commenced a well in the first year during the primary term and never triggered the delayed rental provision because it didn’t delay drilling. The company also paid the Bohlens $5,500 in royalties in 2007, which was during the primary term of the contract. The energy companies paid royalties to the Bohlens every year from 2006 to 2014, ranging from $4,172 to $5,500.
The Bohlens also argued that the contract implied that the energy companies were required to drill on each of the individual six tracts, seek out oil and gas, and pay royalties. They maintain the contract in reality forced the couple to waive the requirement and allowed the companies to postpone drilling indefinitely as long as they paid the rental fee. They contend that provision invalidates the contract, but the Fourth District disagreed, finding the drilling of the first well was sufficient to maintain the contract. The Fourth District ruled the energy companies didn’t have to pay a delayed rental or take action on the four unexplored tracts of land as long as the second well continued to produce paying quantities of gas.
The Bohlens appealed the decision to the Supreme Court, which agreed to hear the case. Artex Energy Corp., which acquired the lease interests, is defending the actions of the energy companies in the case before the Court.
Payment Terms All Mean the Same, Bohlens Argue
The Bohlens cite the Ohio Supreme Court’s 1983 Ionno v. Glen-Gery Corp. decision, which indicated “rent” and “minimum royalties” are interchangeable terms and that the addendum on the Bohlens’ contract specifically refers to the royalty payment as the equivalent of an annual rental payment. The couple also notes it was not a coincidence that Alliance set the delayed rental payment in the contract at the same $5,500 level as the royalty in the addendum. The provision in paragraph 13 of the contract that allows for termination states that non-payment of “rental or royalty” terminates the contract, and the company explicitly struck out the line of the paragraph 13 that wouldn’t terminate the contract for failure to pay the full amount.
“Whether ‘rent’ or ‘royalty’ both parties agreed and intended that failure to pay the annual sum would terminate the lease. They went out of their way to make this explicit,” the Bohlens’ brief stated.
The Bohlens argue that while delay rental is a common term in the oil and gas industry, and that in most cases, the parties agree that the delay rental applies only to the primary term, it isn’t an absolute requirement. They argue because they and Alliance were attempting to negotiate one contract for six noncontiguous parcels, instead of separate contracts for each, the contract terms were altered. They note the company also struck out the language that indicated how much time it had to commence a well from the start of a lease. They argue that was intended to allow the delay rental to continue far past the first year so that the company could delay exploration on the other land tracts by simply making a $5,500 rental payment.
The Bohlens contend the Fourth District indicated precedent “generally” confines a delay rental payment to the primary term, but didn’t cite cases or a law that prevented the payments from extending into the secondary term. Further, they argue the appellate court didn’t address the fact that the language preventing termination of the lease for nonpayment was struck from the contract. They maintain the contract must be judged by the agreement the parties reached, and that the energy companies voided the contract when they failed to make the minimum payments.
In Compliance with Lease, Energy Companies Contend
Artex contends the companies have complied with all aspects of the lease including commencing a well during the first year, which was during the primary term. The second well was put into production in 2007 and the lease is in the secondary term, which allows the companies to maintain control of the Bohlen property as long as the well produces paying quantities and yielding profits. Artex notes that the companies have paid the Bohlens royalties, road maintenance fees, and costs for unused gas from 2006 through 2014.
Artex argues the termination for failure to pay a delayed rental payment is in the contract and only applies to the delay rental term in the contract. Since it drilled in the first year, that provision no longer can act to terminate the lease, the company asserts. The addendum language regarding the royalty payment is a separate provision, unrelated to the delay rental, and violation of that term can’t result in termination of the lease, the company asserts.
“Appellants make too much of the fact that the amount of the minimum royalty payment built into the Addendum was the same as the dollar amount of the delay rental payment found in Section 3. Yes, the amount is the same. This does not mean that the effect of any failure to pay was the same,” Artex’s brief states.
Artex argues if the energy companies are in violation of the royalty payments, the Bohlens have a claim for damages, but not termination of the lease. The company also argues the lease wasn’t drafted to create multiple primary terms for each tract of land and the companies weren’t bound to pay a delay rental for the tracts where no wells have been drilled.
On the issue of whether the lease is invalid by public policy, the company notes the trial court and Fourth District decisions were issued before the Ohio Supreme Court ruled in State ex rel. Claugus Family Farm, L.P. v. Seventh Dist. Court of Appeals in 2016. Artex explains in that case, the Court found that the delay rental provision applies to the primary term, and isn’t a means to making a lease indefinite. The Bohlens’ lease has a primary and secondary term and isn’t void because it isn’t indefinite, the company concludes.
Alliance submitted a three-page brief, noting that its original lease was partially assigned to Artex and it supports Artex’s position.
- Dan Trevas
Representing Ronald and Barbara Bohlen: Ethan Vessels, 740.374.5346
Representing Artex Energy Group: John Brody, 614.462.5400
Representing Alliance Petroleum Corp.: Erik Schramm, 740.695.1444
- Does investigative questioning of a driver in a police vehicle’s front seat during a routine traffic stop rise to the level of custodial interrogation incurring the protections guaranteed by the U.S. Supreme Court’s decision in Miranda v. Arizona (1966)?
- Was it improper for the trial court to suppress evidence gathered during field sobriety tests because that evidence was obtained independently of statements made to an officer when driver was in seated in patrol vehicle?
Near the location where Interstates 71 and 90 split in Cleveland, a lieutenant with the Ohio State Highway Patrol was monitoring traffic on the evening of Sept. 19, 2014. He said he saw a vehicle cross suddenly from an I-90 lane to an I-71 lane. He stopped the vehicle and talked to the driver, Benjamin Oles. After smelling alcohol, the trooper had Oles move to the front seat of the patrol car.
The trooper questioned Oles, conducted field sobriety tests, and arrested him. Oles was charged in Cleveland Municipal Court with operating a vehicle while under the influence (OVI) of alcohol and for a marked lanes violation.
Before his trial, Oles asked the court to suppress the evidence obtained from the traffic stop, arguing that he was in police custody once he was seated in the patrol car. Finding that Oles should have been read his Miranda rights, the court granted the motion to exclude his statements to the trooper and the field sobriety test results.
The city of Cleveland appealed, but the Eighth District Court of Appeals affirmed the trial court in January 2016. The Eighth District noted, however, that its decision conflicted with cases from other state appellate courts and notified the Ohio Supreme Court.
The Supreme Court agreed that there is a conflict and accepted the case for review, along with an appeal from the city. The Court consolidated the two cases for consideration.
Cleveland Argues Suspect Wasn’t in Police Custody
The city argues that questioning a suspect in the front seat of a police vehicle doesn’t amount to a custodial interrogation, which is the point when law enforcement must give Miranda warnings. The city asks the Court to create a bright-line rule that a brief detention in the front seat of a police vehicle during an investigation for OVI isn’t a custodial interrogation.
The U.S. Supreme Court ruled in a similar matter in Berkemer v. McCarty (1984), the city notes. The Court held that the determination of whether a person is in custody depends on how a reasonable person in the suspect’s position would have understood the situation. The Court found that the person was only temporarily detained during a traffic stop – he wasn’t in custody and didn’t need to be “Mirandized.”
The city stated that in this case the lieutenant smelled alcohol when he first talked to Oles, moved Oles to his patrol car to determine the source of the alcohol, asked Oles a few questions, and detained him briefly. The city describes Oles’ stop as routine and not equivalent to an arrest. The stop included initial roadside questioning and field sobriety tests, which the city asserts is unlike the type of custodial interrogation of concern in Miranda.
In addition, the city disputes the Eighth District’s reliance on a 2006 Ohio Supreme Court decision, State v. Farris, to uphold the suppression of evidence from Oles’ traffic stop. The officer in Farris did a pat-down of the suspect, took his car keys, told him to sit in the police vehicle, and planned to search the suspect’s car. In suppressing statements made to the police, the Ohio Supreme Court held that a reasonable person in Farris’ position would have considered himself to be in police custody. The city maintains that the Eighth District incorrectly extended the Farris ruling by concluding that a reasonable person in Oles’ circumstances wouldn’t feel free to leave and was therefore in police custody. Instead, the city agrees with rulings from the Eleventh District Court of Appeals and Seventh District Court of Appeals that allowed evidence to be admitted when obtained during traffic stops where Miranda rights aren’t read.
The city also contends that the field sobriety test results shouldn’t be suppressed because the trooper had reasonable suspicion to conduct the tests before Oles’ statements in the police vehicle. The trooper had reasons to perform the tests after questioning Oles initially, and independently from his additional statements, the city maintains.
Suspect Not Free to Leave When Questioned in Police Car, Oles Counters
According to Berkemer, an ordinary traffic stop doesn’t automatically trigger the need for Miranda warnings, but they must be read “as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest,’” Oles responds.
As in Farris, Oles states he was stopped for a traffic violation, questioned, moved to the police vehicle, and questioned further. A reasonable person who is ordered into a police vehicle and questioned would think he was being detained and wasn’t free to leave until the officer released him, Oles argues.
The decisions in conflict with the Eighth District – from the First, Fifth, Seventh, and Eleventh district appeals courts – focused on certain facts in the Farris case (the suspect was patted down and handcuffed, and his keys were taken away) rather than applying the reasonable person standard, Oles asserts.
“There is no precedent requiring an interaction be intimidating or combative before a suspect’s Miranda rights are triggered,” Oles’ brief states. “There is also no precedent requiring a suspect be handcuffed, searched, or relieved of his keys before Miranda is triggered. The facts set forth in Farris were not a litmus test.”
He notes that a police vehicle is an intimidating place by its nature. Acknowledging that handcuffs, pat-downs, seizure of car keys, and long detentions make a detention more custodial-like, Oles contends that the lack of these actions doesn’t make it a non-custodial detention.
Law enforcement officers would need little time to advise suspects of their Miranda rights before placing them into a police vehicle, but doing so would protect each suspect’s constitutional rights before being questioned, Oles argues.
Oles disputes the city’s view that the trooper had adequate suspicion to believe he was intoxicated and to conduct field sobriety tests before their discussion in the police vehicle. First, Oles states that the city didn’t raise this argument in the lower courts so it’s improper to make the claim now. However, on the issue itself, the city’s arguments fail, Oles maintains. He points out that the trooper testified that he decided to perform the field tests only after he questioned Oles in the police car. The decision to do the field tests didn’t stem from a separate, independent source, Oles notes. The field tests were conducted after Oles answered the trooper’s questions in the police car, so his statements in the trooper’s vehicle along with the field sobriety test results must be suppressed, Oles concludes.
Friend-of-the-Court Briefs Filed
The Ohio Prosecuting Attorneys Association and Cuyahoga County Prosecutor’s Office have submitted an amicus curiae brief supporting the city of Cleveland. The Ohio Association of Criminal Defense Lawyers has filed an amicus brief supporting Oles.
Divided Oral Argument Time
The Cuyahoga County Prosecutor’s Office and the city of Cleveland asked the Court to permit them to share the city’s 15 minutes of oral argument time. The Court granted the request.
– Kathleen Maloney
Representing the City of Cleveland: Jonathan Cudnik, 216.664.4850
Representing Benjamin S. Oles: Joseph Patituce, 440.471.7784
State of Ohio v. Sherry Bembry and Harsimran Singh, Case no. 2016-0238
Seventh District Court of Appeals (Mahoning County)
ISSUE: Is the exclusionary rule the appropriate remedy under the Ohio Constitution (Article 1, Section 14) for a violation of R.C. 2935.12, Ohio’s knock-and-announce statute?
According to police testimony, a confidential informant working with police made two drug buys in October 2012 from Harsimran Singh at or near his apartment in Boardman, near Youngstown. After the exchange, the Boardman Police Department obtained a warrant to search the apartment where Singh and Sherry Bembry lived.
A group of officers went to the apartment building on Nov. 2 and knocked on Singh and Bembry’s door. The police heard a male voice ask, “Who is it?” An officer responded: “Police. Open the door.” The officers then used a battering ram to knock down the door and enter the residence. During a search, police stated they found seven-tenths of a gram of heroin and two guns, and seized several other items, including a Playstation video game console and a 50-inch television.
Trial Court Agrees Evidence Must Be Suppressed
Singh and Bembry asked the trial court to exclude the evidence police gathered during the search. In May 2014, the court granted the motion to suppress the evidence, determining that the police didn’t announce their purpose before they forcibly entered the apartment. R.C. 2935.12, referred to in the briefs as Ohio’s “knock-and-announce rule,” requires officers to state their intention to execute a warrant before breaking through a door or window.
The Mahoning County prosecutor appealed to the Seventh District Court of Appeals, which reversed the trial court’s decision. The Seventh District concluded that the exclusionary rule didn’t apply because the evidence was found when the police executed a valid search warrant. The appeals court based its decision on a 2006 U.S. Supreme Court ruling, Hudson v. Michigan.
Singh and Bembry filed an appeal with the Ohio Supreme Court, which accepted the case.
U.S. Supreme Court Ruling in Hudson
According to the briefs, the U.S. Supreme Court held in Hudson that the U.S. Constitution’s Fourth Amendment prohibition against unreasonable searches and seizures doesn’t mandate that all evidence found during a legal search has to be excluded when the police violate the knock-and-announce rule. The rule protects human life and limb, privacy and dignity, and personal property, the Court noted and concluded that the exclusionary rule didn’t apply to a knock-and-announce violation because the protected interests had nothing to do with the seized evidence. The knock-and-announce rule doesn’t shield the government from seeing or collecting evidence that is described in a warrant, the Court stated.
Alleged Offenders Argue Unreasonable Search Violated Their Rights
Noting that the knock-and-announce rule is rooted in common law and predates the U.S. Constitution, Singh and Bembry maintain that the rule directs officers to knock on the door, state their intention, and identify themselves before they forcibly enter a residence. It was designed to protect against an unlawful invasion of one’s home, they add.
They point out that, along with the Fourth Amendment, the Ohio Constitution in Article I, Section 14 provides protections against unreasonable searches and seizures. The U.S. Supreme Court has determined that states can interpret their constitutions as imposing tougher limits on police conduct than the federal constitution, and the Ohio Supreme Court has ruled the state’s constitution does give greater protections than the Fourth Amendment, Singh and Bembry note. Citing precedent from the Ohio Supreme Court, they argue that a search and seizure in violation of a statute infringes on a person’s constitutional rights in this state, and that violation requires evidence collected from the search to be excluded. Because the police violated the knock-and-announce mandate in R.C. 2935.12 by not announcing their purpose, the search of the apartment was unreasonable under the Ohio Constitution and the exclusionary rule is the only remedy, Singh and Bembry assert. Disallowing the evidence will deter the police from conducting illegal searches in the future, they maintain.
Singh and Bembry highlight part of the trial court’s judgment, which stated, “[I]f there is no consequence to a violation of the rule, then why have the rule at all?” They ask the Court to reverse the Seventh District’s decision and find that the only remedy for a violation of the knock-and-announce rule in R.C. 2935.12 is suppression of the evidence gathered in the search.
Prosecutor Contends Mistake Too Minor to Exclude Evidence
The Mahoning County Prosecutor’s Office maintains that the exclusionary rule’s sole purpose is to deter willful or negligent police misconduct. The prosecutor stresses that the degree of police misconduct must be considered when deciding whether the exclusion of evidence is warranted. The deterrence effect is minimized when police act with reasonable good faith that their conduct is legal or if their action reflects an isolated instance of negligence, the prosecutor contends, citing case law. In addition, the prosecutor states that courts must find that the benefit of deterring future police misconduct outweighs the cost to society of suppressing evidence gathered by police.
The U.S. Supreme Court in Hudson wrote that excluding evidence is “our last resort, not our first impulse,” the prosecutor notes. In the prosecutor’s view, Hudson should be applied in Ohio so that evidence can’t be excluded when police fail to follow the state’s knock-and-announce statute. Citing the federal decision, the prosecutor maintains that, regardless of the police mistake in this case, the search would’ve been conducted anyway, still resulting in the discovery of the drugs and guns. The link between the violation of the statute and the evidence obtained during the search is too weak to warrant the suppression of the evidence, the prosecutor argues. Instead of a reckless disregard for constitutional rights, the prosecutor asserts that this case involves only an insignificant error.
“Therefore, the exclusionary rule is an inapplicable remedy under Article I, Section 14 of the Ohio Constitution for violating Ohio’s knock-and-announce rule when the evidence is discovered while executing a lawful warrant, because the violation was a single, minor transgression, which was neither purposeful nor flagrant, and ‘the causal link between a violation of the knock-and-announce requirement and a later search is too attenuated to allow suppression,’” the prosecutor’s brief states, citing the concurring opinion in Hudson.
Since Hudson, the prosecutor contends, every Ohio appellate court has held that evidence can’t be excluded when police violate the state’s knock-and-announce statute.
Groups Submit Friend-of-the-Court Briefs
The Office of the Ohio Public Defender has filed an amicus curiae brief supporting Singh and Bembry. The office notes that the Court in Hudson stated that defendants could instead file civil lawsuits to address violations of the knock-and-announce rule. Pointing out that indigent defendants lack the resources to sue in civil court, the public defender argues that the exclusionary rule is the proper remedy when police violate a person’s constitutional rights by failing to follow R.C. 2935.12.
Amicus briefs supporting the Mahoning County prosecutor’s position have been submitted by the Ohio Attorney General’s Office and the Franklin County Prosecutor’s Office. The Franklin County prosecutor stressed the importance of prosecuting heroin traffickers during the current outbreak of overdoses in the state and argues that excluding the evidence in this case is out of proportion to the police’s partial violation of the knock-and-announce statute.
The attorney general contends that interpretation of the Ohio Constitution can depart from that of the U.S. Constitution, but only in limited circumstances. In this case, the attorney general maintains that the state’s constitution provides no greater rights than the federal constitution, so the Court would improperly expand the reach of the exclusionary rule if it adopts Singh and Bembry’s arguments.
Prosecutor, Attorney General to Share Oral Argument Time
The Court has granted a motion from the Mahoning County Prosecutor’s Office and the Ohio Attorney General’s Office to share the county prosecutor’s 15 minutes of oral argument time.
- Kathleen Maloney
Representing Harsimran Singh and Sherry Bembry: Louis DeFabio, 330.782.3000
Representing the State of Ohio from the Mahoning County Prosecutor’s Office: Ralph Rivera, 330.740.2330
State of Ohio v. Joshua Polk, Case no. 2016-0271
Tenth District Court of Appeals (Franklin County)
- Did a trial judge properly suppress from the evidence a gun found on a high school student who was searched as a result of an earlier search of an unattended book bag found on a school bus that had the student’s name on an item in it and bullets in the bag?
- Does the exclusionary rule, which bars admissibility of evidence from an illegal search, apply to searches conducted by public school employees?
- To be a constitutional search, must a public school employee’s search of an unattended book bag only meet the standard of being reasonable, or does the employee’s intent determine whether the search is permitted?
Joshua Polk, a student at Whetstone High School in the Columbus City School District, was indicted on one count of illegal conveyance or possession of a deadly weapon in a school safety zone. Polk sought to suppress from the evidence in his trial a handgun found in a bag he was carrying when he was stopped in the high school by the principal, a Columbus police officer, and Robert Lindsey whose title was Whetstone “safety and security officer.” Lindsey isn’t a law enforcement officer. Polk claimed the gun was found during an illegal search prompted by Lindsey.
Lindsey was the sole witness at a suppression hearing conducted by the trial court. Lindsey testified that while on a school bus walk-through in February 2013, he noticed an unattended book bag. Lindsey opened the bag, saw some papers and notebooks, and an item with Polk’s name on it. He stated it was rumored that Polk was possibly in a gang, and he took the bag to the principal’s office. There he emptied the contents of the bag and found multiple bullets in it. Lindsey, the principal, and the police officer located Polk. The police officer put Polk in a hold, and Lindsey searched a bag in Polk’s possession, and located a gun in Polk’s bag.
Under questioning by the trial judge, Lindsey provided varying answers on the Whetstone search protocol and whether he intended to completely empty the bag as part of his standard procedure, or if he did so only because he suspected Polk was involved in a gang. Lindsey also first suggested the search of Polk happened within 20 minutes of discovering the bullets, but later said he couldn’t recall for sure if the search took place on the same day as the bag search.
In September 2014, the trial court granted the motion to suppress the gun, determining it was found during an illegal search. The judge ruled Lindsey’s first search of the bag was reasonable not only for safety and security reasons, but also to identify the bag’s owner. Once Lindsey ascertained the bag didn’t have a bomb or pose any threat, and he identified its owner, his original purpose of his search concluded. The judge found that Lindsey couldn’t empty the bag without “reasonable grounds” for suspecting the search would turn up evidence of a violation of a school rule or law. The judge concluded the second search was conducted solely on Polk’s reputation, and that information alone wasn’t reasonable grounds to conduct the second search. The discovery of the bullets during the second search led the school to search Polk and discover the gun. Since the second search was illegal, the gun was inadmissible as “fruit from the poisonous tree,” the court stated.
The Franklin County Prosecuting Attorney appealed the decision to the Tenth District Court of Appeals. In a divided decision, the Tenth District affirmed the trial court’s ruling. The appeals court agreed that Lindsey conducted two separate searches and the second search wasn’t reasonable. The Tenth District also rejected the prosecutor’s argument that, based on the U.S. Supreme Court’s 1985 New Jersey v. T.L.O., decision searches by school officials don’t have to meet the same Fourth Amendment standards for a search as a police officer must, and that the exclusionary rule doesn’t apply to school employees.
The dissenting judge in the Tenth District agreed the trial judge didn’t abuse his discretion when ruling the gun could be suppressed, but wrote that neither the U.S. Supreme Court in T.L.O. or any other case, nor the Ohio Supreme Court, have ruled that the exclusionary rule applies to school employees.
The prosecutor appealed the decision to the Ohio Supreme Court, which agreed to hear the case.
Case Draws Interest of School and Children Advocacy Groups
The questions of whether the exclusionary rule applies to school employees and the standards school employees must abide by when conducting searches has drawn the interest of several statewide and national organizations. The Ohio Attorney General’s Office has filed an amicus curiae brief supporting the Franklin County prosecutor as did six statewide educational organizations who filed a joint brief. That group includes the Ohio School Boards Association and the Ohio Education Association. Amicus briefs on behalf of Polk have been filed jointly by 15 juvenile justice advocates and researchers, including the Philadelphia-based Juvenile Law Center and Professor Barry C. Field, a University of Minnesota Law School professor who has written 10 books and more than 100 articles on juvenile justice that have been cited in more than 100 state and federal court decisions. Other organizations also filed briefs.
Search Was Reasonable, Prosecutor Argues
The Franklin County prosecutor explains the Fourth Amendment prohibits “unreasonable searches and seizures,” and in a law enforcement context, that requires a warrant supported by probable cause. However, that standard isn’t justified by those who are not law-enforcement personnel, and in a public school setting a search is justified by “special need,” the prosecutor asserts. Because students have a reduced expectation of privacy at school and public schools are responsible for maintaining order and a safe learning environment, a search in a public school only needs to be reasonable, and doesn’t require a warrant or probable cause, the prosecutor argues, citing T.L.O.
The prosecutor suggests that Lindsey’s emptying of the book bag was reasonable because it was done according to a school policy to search all unattended bags for safety and security purposes. The prosecutor noted that both the trial court and Tenth District found that if Lindsey had emptied the entire bag before Lindsey noticed Polk’s name, the search would have been reasonable. The prosecutor argues Lindsey’s suspicions and motives aren’t a factor when evaluating the legality of a school search.
“A search is reasonable—and thus constitutional—if it is conducted pursuant to a public school’s reasonable search policies, regardless of what the public-school employee who performed the search was thinking at the time,” the prosecutor’s brief states.
Even if the Court finds that the discovery of the bullets by searching the bag was unconstitutional and tainted the discovery of the gun, the gun should be admitted because the exclusionary rule doesn’t apply to public school employee searches, the prosecutor maintains. Citing the U.S. Supreme Court’s 2011 Davis v. United States decision, the prosecutor asserts the exclusionary rule’s “sole purpose” is to deter police from future Fourth Amendment violations. Excluding evidence from a school worker’s search does nothing to deter police, and even if the rule would apply to school employees to serve as a deterrent, the deterrence value would not outweigh the costs, the prosecutor suggests.
“It is always a ‘bitter pill’ to require courts to ‘suppress the truth and set the criminal loose in the community without punishment,’” the brief states, citing Davis. “But suppression is particularly costly when it allows a criminal who compromises the safety of a public school to escape criminal punishment.”
Students Rights Violated, Polk Argues
Polk argues the trial judge and Tenth District were correct to suppress the evidence, noting a student’s constitutional rights aren’t lost when entering school property, and that while a student has a reduced expectation of privacy, there is some expectation. He points out the prosecution presented only Lindsey as a witness and the trial judge questioned the credibility of his statements that he intended to empty the bag and conduct a full search regardless of who the owned the bag. Citing the U.S. Supreme Court’s 1982 United States v. Ross opinion, Polk notes that as a general matter the Fourth Amendment protects every container that conceals contents from plain view and that public school students retain protection against “unreasonable” searches of their backpacks and purses.
That expectation of privacy even extends to mislaid or lost bags, Polk notes, and Lindsey testified it was common for students to leave their bags on busses or around the school. When this occurs, attempts are made to return the item to the students or to place the item in the “lost and found.” Lindsey had the authority to inspect the bag to identify its owner and determine that it didn’t create a safety threat, but once those goals were met, any subsequent search is unwarranted, Polk asserts.
Polk counters the search wasn’t a “special need” because it wasn’t conducted for school disciplinary proceedings but was done through a policy closely connected with general law enforcement. The connection between school safety goals and law enforcement have been blurred by the federal government’s “gun free requirements” which withholds federal funds from schools that don’t have a policy of referring to law enforcement students bringing firearms to school, he notes. Because of its connection to criminal prosecution, the Fourth Amendment requirements apply, he maintains.
“To be sure, the search policy’s ultimate goal may very well be to promote school safety. However, as illustrated by the case facts, the immediate goal is general crime detection. This was made manifest by the close coordination of school security personnel and other school officials working in tandem with law enforcement officials (even to the extent of law enforcement assuming primary responsibility for the investigation...) and prosecuting offenders in the criminal justice system,” Polk’s brief states. “For these reasons the policy ran afoul of the fourth amendment and is not valid.”
Polk also argues that many courts across the nation have applied the exclusionary rule to public school employees and it is justified in this case because the nature of the search isn’t related to the traditional practice of schools seeking evidence for their own disciplinary procedures. Citing the U.S. Supreme Court’s 1975 United States v. Calandra decision, he notes the key distinction courts have made when determining if the exclusionary rule applies is where the evidence is intended to be offered, such as in a civil or criminal proceeding, and for what purpose.
“First, Mr. Polk faced formal prosecution at a trial where the state intended to offer incriminating yet illegally-obtained evidence against him. This was not a school disciplinary hearing or some other non-criminal proceeding. As noted in Calandra the deterrence effect of the exclusionary rule is at its highest when the citizen is confronted with the possibility of a criminal sanction made more likely by the introduction of evidence gathered as a result of the unlawful conduct of the government official,” his brief stated.
The amicus briefs of Ohio Attorney General’s Office and the six statewide Ohio educational organizations both note the decision will impact schools and law enforcement throughout the state. The 15 juvenile law groups argued that affirming the Tenth District’s ruling would ensure protection of children’s Fourth Amendment rights. Also filing amicus briefs on behalf of Polk’s positions were the Office of Ohio Public Defender, the Ohio Association of Criminal Defense Lawyers, and the Justice for Children Clinic at the Ohio State University Moritz College of Law.
Prosecutor Divides Time
The Court approved a request by the county prosecutor to split oral argument time with the attorney general.
- Dan Trevas
Representing the Franklin County Prosecuting Attorney: Seth Gilbert, 614.525.3555
Representing Joshua Polk from the Franklin County Public Defender: Timothy Pierce, 614.525.8857
Representing the Ohio Attorney General: Eric Murphy, 614.466.8980
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